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As a first year teacher, I find it difficult at times to keep tract of all of the daily requirements that go into teaching. On top of that, there are legal and ethical expectations related to conduct outside of the classroom that can be difficult to keep up with. This Padlet will outline specific laws and ethical components as they relate to teacher conduct and expectations on Social Media.

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The goal of this Padlet is to inform teachers in the state of Texas, particularly new teachers, of specific laws and expectations as they relate to posting on Social Media. These laws will be primarily related to teacher conduct on internet platforms related to student communication and personal use.

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As educators, many specific laws have been established in order for us to better serve students in a fair and equitable manner. Breaking an educator conduct law on social media can be detrimental to one's future in the field, so understanding these laws is imperative. Educator conduct laws go beyond the classroom setting and effect daily lives and social media presence. Because of the breadth and depth of these laws, some teachers may not have a full and adequate understanding of the expectations outlined by state, federal and local laws. This Padlet aims at closing that gap and equipping teachers with information need to protect themselves on social media.

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As we know, educator conduct laws are critical to becoming a successful educator. Teaching in a pandemic, though, opens a new perspective to potential opportunities for educator misconduct that we may not realize. The age of technology has helped educators everywhere reach students during these hard times, but with technology comes ease of access. Students are easily able to access educator social media accounts and with a pandemic, comes controversial political opinions and other potentially negative social media postings.
Teachers have also taken to social media to complain about new working conditions, which may be detrimental to their careers.

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Association of Texas Professional Educators (ATPE) is an educator association that works to assist teachers in various aspects of their careers. One item specifically that ATPE assists with is educator law. The organization offers information on specific educator laws as well as legal assistance in the event a teacher needs representation. The link below leads directly to their site in which they posted clear information regarding educator certification sanctions and discipline. The post is brief, but discusses at length the process of a sanction, which is action that may be taken against a teacher who is under investigation and found guilty of educator misconduct as outlined by the Texas Education Agency as well as the Educator Code of Ethics.

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TEA's enforcement guidelines identify the following as grounds for disciplinary action:

Conducting school or education activities in violation of law.

Unworthiness to instruct or supervise the youth of the state.

Code of Ethics violations.

Failure to report or hindering a report of child abuse.

Unlawful abandonment of a contract governed by the Texas Education Code.

Failure to cooperate with a TEA investigation.

Violating the security or integrity of state assessments.

Committing one of the following sanctionable acts:

Any conduct constituting a felony criminal offense.

Indecent exposure.

Public lewdness.

Child abuse and/or neglect.

Possession of a weapon on school property.

Drug offenses occurring on school property.

Sale to or making alcohol or other drugs available to a student or minor.

Sale, distribution or display of harmful material to a student or minor.

Certificate fraud.

Serious state assessment testing violations.

Deadly conduct.

Conduct that involves soliciting or engaging in sexual conduct or a romantic relationship with a student or minor.

Committing an act that would constitute a crime (even if there is not a criminal conviction), if the act relates directly to the education profession, as described in §249.16(b) of the Texas Administrative Code. Such crimes indicate a threat to the health, safety or welfare of a student or minor, parent of a student, fellow employee or professional colleague; interfere with the orderly, efficient or safe operation of a school district, campus or activity; or indicate impaired ability or misrepresentation of qualifications to perform the functions of an educator. They include but are not limited to:

Crimes involving moral turpitude.

Crimes involving any form of sexual or physical abuse or neglect of a student or minor or other illegal conduct with a student or minor.

Crimes involving any felony possession or conspiracy to possess, or any misdemeanor or felony transfer, sale, distribution or conspiracy to transfer, sell or distribute any controlled substance defined in the Texas Health and Safety Code, Chapter 481.

Crimes involving school property or funds.

Crimes involving any attempt by fraudulent or unauthorized means to obtain or alter any certificate or permit that would entitle any person to hold or obtain a position as an educator.

Crimes occurring wholly or in part on school property or at a school-sponsored activity.

Felonies involving driving while intoxicated (DWI).

Intentional failure to comply with the reporting, notification and confidentiality requirements specified in the Texas Code of Criminal Procedure, §15.27(a), relating to student arrests, detentions and juvenile referrals for certain offenses.

The Legislature has empowered SBEC to enforce the standards of conduct. The board is authorized to take actions affecting an educator's certification after finding that an educator has violated a standard of conduct. SBEC only has power to sanction an educator's certification that was granted by SBEC itself. The board cannot impose criminal penalties, fines or affect employment directly, though the loss of certification can certainly affect employment.

The range of disciplinary actions that SBEC can take against an educator range from an uninscribed reprimand to full certification revocation. The range is determined by the severity of the misconduct. In order of increasing severity, an educator who has been found to have engaged in misconduct may receive:

An uninscribed reprimand: A document stating that the educator has been reprimanded. A general statement describing the alleged misconduct is placed in the educator's SBEC file, but no notice of the reprimand is made publicly, and no notice is placed on the educator's virtual certificate maintained by SBEC.

An inscribed reprimand: A document stating that the educator has been reprimanded. A general statement describing the alleged misconduct is placed in the educator's SBEC file, and a notice that the educator has been reprimanded is placed on the educator's virtual certificate maintained by SBEC. The certificate notice states that the educator has been reprimanded and states the date of the reprimand, but it provides no details regarding the alleged misconduct. The notice is permanent and cannot be removed from the certificate.

A probated certificate suspension: Much like probation in the criminal system, with a probated suspension, the educator is suspended, but the suspension is probated, and the educator's certification remains fully valid. Often the probation will entail certain action by the educator, such as attending a certain number of hours of additional training. Importantly, if SBEC receives notice of additional misconduct, the board may revoke the probation and enforce the original suspension without the full due process procedures normally required. Just as with a reprimand, a document setting out the alleged misconduct and the terms of the suspension and probation is kept in the educator's SBEC file, and a notice of the probated suspension is permanently added to the educator's virtual certificate.

A certificate suspension for a set term: A suspension renders the educator's certificate invalid for a set period of time-commonly one to five years, depending upon the seriousness of the misconduct. During the term of suspension, an educator is prohibited from working in any position requiring certification. At the end of the suspension, the educator must apply to be reinstated. Although the conduct leading to the suspension cannot be used as grounds to deny reinstatement, any separate and independent conduct that would lead SBEC to deny certification can result in a denial of reinstatement. Again, a document setting out the alleged misconduct and the terms of the suspension is kept in the educator's SBEC file, and a notice of the suspension is permanently added to the educator's virtual certificate.

A permanent revocation of certification: When SBEC determines that an educator's misconduct is so serious that the educator should never be allowed to work as an educator again, the board will permanently revoke the educator's certification. In this case the educator normally is unable to reapply for reinstatement at any time.

Both the Texas Education Code and SBEC rules establish mandatory penalties for certain actions taken by an educator. Included in these mandatory penalties are:

Mandatory revocation of certification for engaging in or soliciting a romantic relationship with a student or minor.

Mandatory minimum sanction of certificate suspension for any resolution of a felony-level criminal prosecution that involves a conviction, guilty or nolo contender plea, deferred adjudication or deferred prosecution that involves probation or community supervision.

Mandatory minimum sanction of an inscribed reprimand for any resolution of a misdemeanor-level criminal prosecution that involves a conviction, guilty or nolo contender plea, deferred adjudication or deferred prosecution that involves probation or community supervision.

Mandatory minimum sanction of a one-year suspension for any intentional violation of state-mandated test security or manipulation of test results.

Mandatory one-year suspension of certification for contract abandonment unless one of the mitigating factors provided for in SBEC rules applies.

Once earned, an educator's certificate cannot be sanctioned without due process. The disciplinary process is regulated by administrative rules and follows a particular pattern, moving from the initial report of an allegation to an investigation, a possible hearing and a possible SBEC determination regarding the appropriateness of a sanction. But to exercise her rights to due process, an educator must respond to a notice that an allegation has been made.

SBEC and the TEA staff conducting conduct the investigation and filing the possible formal complaint described below are only required to mail notice to the address in the educator's SBEC file. It is critically important that all certified educators make sure that their addresses are up-to-date with SBEC. Failure to do so can result in your losing your right to defend yourself. SBEC can sanction an educator who fails to respond to a notice of investigation or complaint even if the reason she failed to respond is that she did not receive notice because her address was not up-to-date.

Educators are entitled to legal representation through all phases of the disciplinary process.

Report of alleged misconduct

Disciplinary investigations may be initiated based on information in virtually any form and from any source, including complaints from parents or even media publicity. Certain agencies are required to notify SBEC when allegations have been made against an educator, most notably the police and Child Protective Services (CPS). However, the educator's employing school district is the most common source of reports instigating an investigation.

A school district may report alleged misconduct and in some cases is required to report alleged educator misconduct. Reports are required with certain particularly serious allegations, mostly involving illegal activities and inappropriate activities involving students. Educators should know that state law requires that the superintendent report these allegations when an educator resigns to avoid termination or nonrenewal. That's why it is unlikely a quick resignation will allow an educator to avoid an investigation into alleged wrongdoing.

Situations in which school districts are required, under threat of penalty, to report educator misconduct to SBEC include:

Any sexual conduct, abuse, neglect or unlawful conduct involving an educator and a student or minor.

Possession, transfer or sale of a controlled substance.

Illegal transfer, appropriation or expenditure of district funds or property.

Attempt by fraudulent or unauthorized means to obtain or alter a professional certificate or license for the purpose of employment, promotion or additional compensation.

Commission of a criminal offense or any part of a criminal offense on school property or at a school-sponsored event.

Solicitation of sexual conduct or a romantic relationship with a student or minor.

Violation of the assessment instrument security provisions as described in 19 Tex. Admin. Code §101.65(e),(g).

A report is required when the superintendent has reasonable cause to believe that misconduct has occurred and the educator either resigns or is terminated.
Districts may also report alleged misconduct even when it does not fall within one of the required report categories.

For example: One common but not-required report is that an educator abandoned his employment contract with the district without good cause, which means the educator left before the end of the school year without being released by the district and did not have a good reason for doing so. SBEC regularly sanctions educators for contract abandonment.

TEA prioritizes the severity of reported allegations based on the nature of the reports. Highest priority is given to allegations that present a risk to the health, safety or welfare of a student or minor, the parent of a student, or a professional colleague.

Upon receipt of an allegation of this type, investigative staff will "flag" the educator's virtual certificate with a warning that an investigation is pending. Investigative warnings, like the certification itself, are viewable by the public, including potential employers, and normally remain on the educator's certificate until the matter is concluded.

When the investigative staff intends to "flag" an educator's virtual certificate, the investigator will notify the educator, so the educator has an opportunity to establish that no investigation is needed and that the warning should not be placed. This is not an opportunity to dispute the merits of the allegations-that comes later-but rather an opportunity to notify the investigative staff that a basic mistake has been made, such as mistaken identity.

The investigation

Once a report of alleged misconduct is received, a TEA investigator is assigned to the case. The investigator will mail notice to the educator and will typically begin requesting information from the educator's district and all past districts where the educator has been employed. The investigator may also contact potential witnesses.

The investigation is not limited to the initial report. Sometimes an educator is cleared on the initial matter but sanctioned for unrelated actions uncovered during the investigation.

The rules require the investigator to provide an educator with an opportunity to "show compliance" with the rules and expectations-in other words, to informally tell his side of the story. This can either be done through an informal in-person conference or a written statement.

Prehearing settlement

Once the investigator is satisfied that she has all the information she needs, she will either notify the educator that the investigation will be closed without pursuing any sanction, or she will offer the educator a settlement that includes some type of sanction that might be agreeable to the educator in order to avoid having an administrative hearing.

If SBEC and the educator cannot reach an agreement through informal conference, the matter will be turned over to a TEA attorney, who may file a formal complaint against the educator.

Formal complaint, hearing and board determination

If the investigation is not closed and no settlement is reached, a formal complaint can be filed against the educator. The complaint must state the specific allegations against the educator and the sanction sought. A copy of the complaint must be sent to the educator. Again, the copy is only sent to the address on file at SBEC, so it is critical that all educators keep this current.

Upon receiving a copy of the complaint, the educator has only a certain period of time to respond to the complaint with a formal answer. Failure to respond by the deadline can, again, result in the educator losing the right to defend herself, so it is very important not to ignore a complaint. The answer must also contain certain specific information and follow certain specific legal rules, so it is always a good idea for an educator to engage a competent attorney.

Following a period where the two sides can request information from one another, called "discovery," a hearing is held at the State Office of Administrative Hearings (SOAH) by an administrative law judge (ALJ). The hearing is basically a "mini-trial" in which witnesses are called, examined and cross-examined, and evidence is submitted by both parties for consideration by the ALJ.

After the hearing is concluded, the ALJ will prepare a document, named a "Proposal for Decision" (PFD). The PFD includes "findings of fact," which are the ALJ's determination of what occurred based on the testimony and evidence submitted, and "conclusions of law," which are the ALJ's determination of whether those facts represent a rules violation. The PFD will also include a recommendation as to whether a sanction should be assessed and, if so, what sanction would be appropriate. As implied by the name, the ALJ's determination is not final-it is just her determination and recommendation to SBEC.

The PFD is later presented to SBEC, and both parties are provided an opportunity to make a presentation on what the board should do: either accept the ALJ's findings and sanction recommendation, or reject it. The board then votes as to what the final outcome will be.

Although the board is legally limited in its ability to change the ALJ's findings of fact, it is not unheard of for the board to reject the ALJ's recommended sanction. There are also cases in which the ALJ has recommended no sanction but the board still decided to revoke the educators' certification.

After exhausting this process, an educator may appeal a sanction in court.

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TEA's enforcement guidelines identify the following as grounds for disciplinary action: Conducting school or education activities in violation of law. Unworthiness to instruct or supervise the youth of the state. Code of Ethics violations. Failure to report or hindering a report of child abuse. Unlawful abandonment of a contract governed by the Texas Education Code.

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The attached article posted by the Texas Tribune discusses several aspects of student discipline.

In some cases, students act out in violent ways that may even jeopardies teacher safety

Teachers have shared stories in which students threaten them in violent ways, such as threatening to burn down their homes. With easy access to public social media accounts, students may be able to follow through with some threats

Senate Bill 2432 allows for stricter punishments towards students who violently threaten teachers

This bill makes it easier to remove students from a classroom when threatening remarks are made

This article serves as a reminder that teachers can sometimes be limited in their available actions when working with students based on restrictive laws and fear of sanctions

As we consider social media use, students who threaten teachers may find it easier to actually follow through with threats based on information accessible via social media. These laws help to protect teachers when/if students threaten them and they feel unsafe.

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Teachers don't like to talk about being harassed by their students. But the stories come out, if you ask enough: Students warning they'll burn down teachers' homes. A student threatening to injure a pregnant teacher. A student stabbing a steak and putting it on a teacher's desk.

Starting in September, such students will be subject to a new state law, one that requires students who harass teachers to be referred to disciplinary alternative education programs - outside of their regular classrooms.

Senate Bill 2432 narrowly passed the Republican-dominated state Legislature in May after a lobbying group for Texas teachers argued it was key to ensuring educators are safe and protected in their classrooms.

But the change is a controversial one, which has re-upped a perennial debate over how to help teachers manage aggressive or violent student behavior without increasing the chances that the state's most disadvantaged kids will be disciplined and then drop out.

And it has raised questions about how educators define harassment in a system where student discipline is alreadyhighly subjective. Democratic lawmakers - along with advocates for kids with disabilities and students of color - say the definition of harassment in state law is so vague that it will lead to classroom removals of students who curse at their teachers or merely annoy them.

"If a student says 'F you' to a teacher, do we really think they intended to solicit to commit a sex act? Or were they just using that phrase in the more common, colloquial way to mean, 'I don't really respect you in this moment'?"- Sarah Orman, senior attorney for the Texas Association of School Boards

It's unclear exactly how prevalent student harassment of educators is today in regular Texas classrooms. In a national survey from 2011-12, 10% of Texas teachers reported having been threatened with injury by students at their schools.

Managing student behavior is one of the most challenging tasks for many teachers, and it is as much a part of their jobs as teaching the curriculum. Some teachers who feel endangered by students say their principals don't always take their concerns seriously, said Holly Eaton, director of advocacy for the Texas Classroom Teachers Association, the lobbyinggroup that pushed for the law.

In their codes of conduct, school districts already prohibit students from harassing other students. But the new law adds a penalty when certain types of harassment are aimed at a school employee. Such harassment also now triggers a conference about that student's behavior among parents, teachers and administrators - which Eaton says forces administrators to take it more seriously.

"We kept having these members call us and say there were kids who were threatening them ... 'You better watch out, your family better be careful this weekend,'" she said. Teachers would send those students to the principal's office, and the students would be sent back to the classroom immediately.

The new law would apply to several offenses that fall under the definition of harassment in the state's penal code, including threatening to inflict physical harm; lying about another person dying or being seriously injured; making repeated phone calls in a way that's likely to annoy, alarm, abuse or embarrass another person; and making an "obscene" comment. As with most student discipline issues, school administrators and teachers get leeway to determine exactly what student behavior qualifies.

"With this very loose and broad language ... teachers will have broad latitude to arbitrarily apply the definition of harassment and say that routine behavior or a standing exchange between a student and teacher constitutes harassment," said Andrew Hairston, director of the School-to-Prison Pipeline Project at the advocacy groupTexas Appleseed.

Instead of widening the disciplinary net, school districts should provide more mental health services for students who act out, Hairston said, and the state should fund more programs that give teachers the resources to appropriately manage aggressive behavior.

Eaton, with the classroom teachers group, said the new law does not preclude offering that support.

When administrators have questions about whether they can expel or otherwise discipline a student, they often ask the lawyers at the Texas Association of School Boards. Sarah Orman, one of those lawyers, said she's already expecting to get questions about how to interpret the word "obscene." Under the state's penal code, an "obscene" comment contains an offensive description or solicitation of a sex act, or a description of an excretory function. But Orman thinks school administrators might not apply that definition consistently - or even know to look for it.

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"If a student says 'F you' to a teacher, do we really think they intended to solicit to commit a sex act?" she asked. "Or were they just using that phrase in the more common, colloquial way to mean, 'I don't really respect you in this moment'?"

Under the new law, students who are identified as harassers will be moved to disciplinary alternative education programs, known as DAEPs, which educate students who commit specific disciplinary or criminal offenses separately from their peers. Most DAEPs are highly structured, have metal detectors, require students to wear uniforms and rely on escorts to accompany students as they walk around campus. While the overall number of students in DAEPs has decreased, statewide data shows that in every grade, white students are underrepresented in the programs, while black students, economically disadvantaged students and students with disabilities are overrepresented.

Students generally end up taking classes and learning behavior management skills in DAEPs for an average of 30 days, according to state data. Students transferred to DAEPs are more than three times more likely to drop out of school than their peers in regular classrooms.

Opponents of the new law argue those disparities willget more stark if schools have more leeway to discipline students. "The problem associated with passing a bill that is open to that kind of interpretation is that it ends up being disproportionately applied to students of color and to students with disabilities," said Deborah Fowler, executive director of Texas Appleseed. "That's where we've seen the biggest abuses when it comes to the overuse of exclusionary discipline."

State law already requires school officials to follow a protocol before moving a student from a regular classroom to a DAEP. Within three days of the incident, they must talk with the student and teacher involved, as well as the student's parent, giving a reason for the removal and an opportunity to respond. School administrators must consider whether a student acted in self-defense or has been in trouble before, and the intent of his or her action. If the student involved has a disability that likely caused or contributed to the behavior, school officials cannot discipline him or her.

But in practice, those steps aren't followed consistently.

Caleb, a Houston-area middle school student in Clear Creek ISD, spent the night in a juvenile detention center and was removed to a DAEP for 30 days last year after he created an anonymous Instagram account with posts that a few parents interpreted as threatening. Caleb and his mother argued that Caleb, an honor roll student, had never been in trouble before and had not intended to physically harm anyone. His parents had recently divorced, and he'd been seeing a counselor to talk through his feelings. The counselor assessed him and found he posed a very low risk of threatening or harming anyone, according to documents his mother, Liana Cannon, shared with The Texas Tribune.

Liana Cannon appealed the school's decision with the help of a lawyer, but the process took so long that Caleb was out of the DAEP by the time she had the opportunity to meet with school officials.

"I'm not saying he didn't do anything wrong, but not to the level at which he was disciplined," she said. "He was a child calling out for help, not threatening anybody."

The process had serious ramifications for Caleb, who felt bullied by administrators. "I feel like I won't really be able to have a lot of trust in people in general anymore," he said. "It was just unreasonably hostile from the moment they took me out of the classroom."

While the Cannons argue their school was too quick to remove Caleb, some teachers believe their administrators don't move quickly enough.

One middle school teacher at a small Houston-area charter school - who declined to use his name for fear of retribution from his employer - recalled a student who came in late "making a huge scene," refused to do classwork and refused to leave the classroom when told she would receive in-school suspension. When the teacher tried to close the door, he said, the student "got in my face" and said she would fight him.

The teacher said the student had gotten into trouble for bullying other kids, and he "knew she was physically capable of being aggressive." He reported the incident to school administrators but said ultimately they did nothing.

Teachers also can find it hard to speak publicly about these incidents, fearing that reporting them makes them look powerless or ineffective. "In a way, we have some kind of authority over our classrooms, but to admit that you lost that structure or seem like you're seeking out help, it's alienating," said Jacquetta Thayes, a U.S. history teacher at Glenn High School in Leander ISD, outside of Austin. "I feel like there's some kind of shame."

Administrators aren't immune from that shame, either.

"There are a lot of principals who say, 'There will be no DAEP placements at my campus. My campus won't be viewed as a place where we can't control them,'" said Gayle Sampley, a retired Houston-area teacher who spent years as a teacher in Humble ISD's DAEP.

Sampley agrees teachers need more protection, but she's not sure this law is the way to do it. "Kids are threatening teachers," she said, " but teachers aren't always being the most patient, either."
Disclosure: The Texas Classroom Teachers Association, Texas Appleseed and the Texas Association of School Boards have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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Texas just made it easier to punish students who harass teachers. Will the law be misused?

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Teachers don't like to talk about being harassed by their students. But the stories come out, if you ask enough: Students warning they'll burn down teachers' homes. A student threatening to injure a pregnant teacher. A student stabbing a steak and putting it on a teacher's desk.

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The attached article posted in the Texas Tribune highlights an excellent example of ambiguity when interpreting educator conduct laws.

Georgia Clark was fired from Ft. Worth ISD in 2019 after posting several tweets to President Trump asking for the deportation of illegal students at her school

Clark appealed the decision and the Commissioner of Education, Mike Morath, agreed that she should not have been fired and deserved her job back

Ft. Worth ISD stood behind their decision, stating they had amble reason to fire Clark

This story serves as an example of the thin line between educator conduct laws and first amendment rights

While right and wrong may seem clear in this case, Commissioner Morath expresses concern that if Clark's termination sticks, other educators may fear speaking with elected officials in the future

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A former Fort Worth teacher argued in an appeal to the state that her tweets asking President Donald Trump to "remove" undocumented immigrants from her school were protected speech.

The Texas Education Agency agreed.

In a decision issued Nov. 25, Texas Commissioner of Education Mike Morath wrote that the teacher, Georgia Clark, should get her job back at Carter-Riverside High School and receive back pay and benefits, or receive one year's salary.

Clark and her attorney could not be reached for comment.

Siding with Clark, Morath rejected Fort Worth ISD's argument that Clark waived her First Amendment rights upon signing an employment contract.

Clark was fired after sending a series of tweets to the president in May, writing that Fort Worth ISD "is loaded with illegal students from Mexico."

"Anything you can do to remove the illegals from Fort Worth would be greatly appreciated," she tweeted to Trump. Hispanic students account for almost 87% of enrollment at Carter-Riverside High School, according to state data.

Clark later appealed the decision to the Texas Education Agency, which found that the school district did not show "good cause" for Clark's firing.

Morath ruled that Clark's tweets were "unique" because she sought Trump's help with issues that he "has responsibility for" and because her Tweets were not sent while on duty or as part of her job.

Morath also cited Clark's right to present grievances to the government and warned that a ruling against Clark may have "a chilling effect" by discouraging public employees from communicating with elected officials.

The former high school English teacher, who was fired in June, said she thought the tweets she sent to the president were private, according to a document obtained by the Fort Worth Star-Telegram. Clark's lawyer, Brandon Brim, could not be reached on Monday.

An independent examiner assigned by TEA recommended the school district reverse its decision because its rationale was "not supported by the evidence."

Robert C. Prather Sr., the examiner, wrote in August that Fort Worth ISD violated Clark's First Amendment rights by moving to fire her, and that her tweets were not "racially insensitive and/or discriminatory."

But in September, Fort Worth school trustees upheld their decision to fire Clark, precipitating her appeal to the Texas education commissioner, according to The Dallas Morning News.

In an interview that month with WFAA, Clark said she stood by her tweets.

Fort Worth ISD officials said they would appeal Morath's decision, adding they believe they have good cause to fire Clark.

"We stand by our decision because we firmly believe this is in the best interests of all students," Superintendent Kent P. Scribner said in a statement.

On Monday, the school district had no comment beyond its initial statement.

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Fort Worth teacher who asked Trump to deport students said her tweets were protected by the First Amendment. Texas officials agreed.

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A former Fort Worth teacher argued in an appeal to the state that her tweets asking President Donald Trump to "remove" undocumented immigrants from her school were protected speech. The Texas Education Agency agreed. In a decision issued Nov.

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31 Tex. Admin. Code § 247.2 (2018).
Section 247.2 of the Texas Administrative Code is a statutory law that outlines expectations for Educators entitled Educators' Code of Ethics.

Standard 3.9 (I) outlines specific guidelines regarding teacher/student communication via various platforms, including social media

Educators should not attempt to conceal communications with students that take place via online platforms

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Enforceable Standards.
(1) Professional Ethical Conduct, Practices and Performance. (A) Standard 1.1. The educator shall not intentionally, knowingly, or recklessly engage in deceptive practices regarding official policies of the school district, educational institution, educator preparation program, the Texas Education Agency, or the State Board for Educator Certification (SBEC) and its certification process. (B) Standard 1.2. The educator shall not intentionally, knowingly, or recklessly misappropriate, divert, or use monies, personnel, property, or equipment committed to his or her charge for personal gain or advantage. (C) Standard 1.3. The educator shall not submit fraudulent requests for reimbursement, expenses, or pay. (D) Standard 1.4. The educator shall not use institutional or professional privileges for personal or partisan advantage. (E) Standard 1.5. The educator shall neither accept nor offer gratuities, gifts, or favors that impair professional judgment or that are used to obtain special advantage. This standard shall not restrict the acceptance of gifts or tokens offered and accepted openly from students, parents of students, or other persons or organizations in recognition or appreciation of service. (F) Standard 1.6. The educator shall not falsify records, or direct or coerce others to do so. (G) Standard 1.7. The educator shall comply with state regulations, written local school board policies, and other state and federal laws. (H) Standard 1.8. The educator shall apply for, accept, offer, or assign a position or a responsibility on the basis of professional qualifications. (I) Standard 1.9. The educator shall not make threats of violence against school district employees, school board members, students, or parents of students. (J) Standard 1.10. The educator shall be of good moral character and be worthy to instruct or supervise the youth of this state. (K) Standard 1.11. The educator shall not intentionally, knowingly, or recklessly misrepresent his or her employment history, criminal history, and/or disciplinary record when applying for subsequent employment. (L) Standard 1.12. The educator shall refrain from the illegal use, abuse, or distribution of controlled substances, prescription drugs, and toxic inhalants. (M) Standard 1.13. The educator shall not be under the influence of alcohol or consume alcoholic beverages on school property or during school activities when students are present. (2) Ethical Conduct Toward Professional Colleagues. (A) Standard 2.1. The educator shall not reveal confidential health or personnel information concerning colleagues unless disclosure serves lawful professional purposes or is required by law. (B) Standard 2.2. The educator shall not harm others by knowingly making false statements about a colleague or the school system. (C) Standard 2.3. The educator shall adhere to written local school board policies and state and federal laws regarding the hiring, evaluation, and dismissal of personnel. (D) Standard 2.4. The educator shall not interfere with a colleague's exercise of political, professional, or citizenship rights and responsibilities. (E) Standard 2.5. The educator shall not discriminate against or coerce a colleague on the basis of race, color, religion, national origin, age, gender, disability, family status, or sexual orientation. (F) Standard 2.6. The educator shall not use coercive means or promise of special treatment in order to influence professional decisions or colleagues. (G) Standard 2.7. The educator shall not retaliate against any individual who has filed a complaint with the SBEC or who provides information for a disciplinary investigation or proceeding under this chapter. (H) Standard 2.8. The educator shall not intentionally or knowingly subject a colleague to sexual harassment. (3) Ethical Conduct Toward Students. (A) Standard 3.1. The educator shall not reveal confidential information concerning students unless disclosure serves lawful professional purposes or is required by law. (B) Standard 3.2. The educator shall not intentionally, knowingly, or recklessly treat a student or minor in a manner that adversely affects or endangers the learning, physical health, mental health, or safety of the student or minor. (C) Standard 3.3. The educator shall not intentionally, knowingly, or recklessly misrepresent facts regarding a student. (D) Standard 3.4. The educator shall not exclude a student from participation in a program, deny benefits to a student, or grant an advantage to a student on the basis of race, color, gender, disability, national origin, religion, family status, or sexual orientation. (E) Standard 3.5. The educator shall not intentionally, knowingly, or recklessly engage in physical mistreatment, neglect, or abuse of a student or minor. (F) Standard 3.6. The educator shall not solicit or engage in sexual conduct or a romantic relationship with a student or minor. (G) Standard 3.7. The educator shall not furnish alcohol or illegal/unauthorized drugs to any person under 21 years of age unless the educator is a parent or guardian of that child or knowingly allow any person under 21 years of age unless the educator is a parent or guardian of that child to consume alcohol or illegal/unauthorized drugs in the presence of the educator. (H) Standard 3.8. The educator shall maintain appropriate professional educator-student relationships and boundaries based on a reasonably prudent educator standard. (I) Standard 3.9. The educator shall refrain from inappropriate communication with a student or minor, including, but not limited to, electronic communication such as cell phone, text messaging, email, instant messaging, blogging, or other social network communication. Factors that may be considered in assessing whether the communication is inappropriate include, but are not limited to: (i) the nature, purpose, timing, and amount of the communication; (ii) the subject matter of the communication; (iii) whether the communication was made openly, or the educator attempted to conceal the communication; (iv) whether the communication could be reasonably interpreted as soliciting sexual contact or a romantic relationship; (v) whether the communication was sexually explicit; and (vi) whether the communication involved discussion(s) of the physical or sexual attractiveness or the sexual history, activities, preferences, or fantasies of either the educator or the student.

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CSISD's employee handbook outline specific expectations regarding social media use under policies CQ and DH. Following these local policies is important so as not to face disciplinary action.

Policies in the China Spring employee handbook specify that employees should not post student information and/or photos on their personal social media accounts without written consent

China Spring ISD. (2020). Employee Handbook. China Spring, TX.

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Tex. Educ. Code § 38.027
The Texas Education Code section 38.027 is a statutory law that expresses the expectations related to educator communication with students.

Educators are expected to monitor their communication with students outside the classroom

This law specifies that individual school districts should develop their own expectations for educator social media communication

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EDUCATION CODE



TITLE 2. PUBLIC EDUCATION



SUBTITLE G. SAFE SCHOOLS



CHAPTER 38. HEALTH AND SAFETY



SUBCHAPTER A. GENERAL PROVISIONS



Sec. 38.001. IMMUNIZATION; REQUIREMENTS; EXCEPTIONS. (a) Each student shall be fully immunized against diphtheria, rubeola, rubella, mumps, tetanus, and poliomyelitis, except as provided by Subsection (c).


Text of subsection as amended by Acts 2007, 80th Leg., R.S., Ch. 43 (H.B. 1098), Sec. 1



(b) Subject to Subsections (b-1) and (c), the executive commissioner of the Health and Human Services Commission may modify or delete any of the immunizations in Subsection (a) or may require immunizations against additional diseases as a requirement for admission to any elementary or secondary school.


Text of subsection as amended by Acts 2007, 80th Leg., R.S., Ch. 94 (H.B. 1059), Sec. 2



(b) Subject to Subsection (c), the Department of State Health Services may modify or delete any of the immunizations in Subsection (a) or may require immunizations against additional diseases as a requirement for admission to any elementary or secondary school.


(b-1) Each year, the Department of State Health Services shall prepare a list of the immunizations required under this section for admission to public schools and of any additional immunizations the department recommends for school-age children. The department shall prepare the list in English and Spanish and make the list available in a manner that permits a school district to easily post the list on the district's Internet website as required by Section 38.019.


(c) Immunization is not required for a person's admission to any elementary or secondary school if the person applying for admission:


(1) submits to the admitting official:


(A) an affidavit or a certificate signed by a physician who is duly registered and licensed to practice medicine in the United States, in which it is stated that, in the physician's opinion, the immunization required poses a significant risk to the health and well-being of the applicant or any member of the applicant's family or household; or


(B) an affidavit signed by the applicant or, if a minor, by the applicant's parent or guardian stating that the applicant declines immunization for reasons of conscience, including a religious belief; or


(2) is a member of the armed forces of the United States and is on active duty.


(c-1) An affidavit submitted under Section (c)(1)(B) must be on a form described by Section 161.0041, Health and Safety Code, and must be submitted to the admitting official not later than the 90th day after the date the affidavit is notarized.


(d) The Department of State Health Services shall provide the required immunization to children in areas where no local provision exists to provide those services.


(e) A person may be provisionally admitted to an elementary or secondary school if the person has begun the required immunizations and if the person continues to receive the necessary immunizations as rapidly as is medically feasible. The Department of State Health Services shall adopt rules relating to the provisional admission of persons to an elementary or secondary school.


(f) A person who has not received the immunizations required by this section for reasons of conscience, including because of the person's religious beliefs, may be excluded from school in times of emergency or epidemic declared by the commissioner of public health.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2003, 78th Leg., ch. 198, Sec. 2.160, eff. Sept. 1, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 43 (H.B. 1098), Sec. 1, eff. May 8, 2007.


Acts 2007, 80th Leg., R.S., Ch. 94 (H.B. 1059), Sec. 2, eff. May 15, 2007.


Sec. 38.002. IMMUNIZATION RECORDS; REPORTING. (a) Each public school shall keep an individual immunization record during the period of attendance for each student admitted. The records shall be open for inspection at all reasonable times by the Texas Education Agency or by representatives of local health departments or the Texas Department of Health.


(b) Each public school shall cooperate in transferring students' immunization records to other schools. Specific approval from students, parents, or guardians is not required before transferring those records.


(c) The Texas Education Agency and the Texas Department of Health shall develop the form for a required annual report of the immunization status of students. The report shall be submitted by all schools at the time and in the manner indicated in the instructions printed on the form.


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


Sec. 38.0025. DISSEMINATION OF BACTERIAL MENINGITIS INFORMATION. (a) The Department of State Health Services shall prescribe procedures by which each school district shall provide information relating to bacterial meningitis to its students and their parents each school year. The procedures must ensure that the information is reasonably likely to come to the attention of the parents of each student. The department shall prescribe the form and content of the information. The information must cover:


(1) the symptoms of the disease, how it may be diagnosed, and its possible consequences if untreated;


(2) how the disease is transmitted, how it may be prevented, and the relative risk of contracting the disease for primary and secondary school students;


(3) the availability and effectiveness of vaccination against and treatment for the disease, and a brief description of the risks and possible side effects of vaccination; and


(4) sources of additional information regarding the disease, including any appropriate office of the school district and the appropriate office of the department.


(b) Repealed by Acts 2019, 86th Leg., R.S., Ch. 1187 (H.B. 3884), Sec. 2, eff. June 14, 2019.


(c) A school district, with the written consent of the Department of State Health Services, may provide the information required by this section to its students and their parents by a method different from the method prescribed by the department under Subsection (a) if the department determines that method would be effective in bringing the information to the attention of the parents of each student.


Added by Acts 2001, 77th Leg., ch. 219, Sec. 2, eff. May 22, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 1187 (H.B. 3884), Sec. 1, eff. June 14, 2019.


Acts 2019, 86th Leg., R.S., Ch. 1187 (H.B. 3884), Sec. 2, eff. June 14, 2019.


Sec. 38.003. SCREENING AND TREATMENT FOR DYSLEXIA AND RELATED DISORDERS. (a) Students enrolling in public schools in this state shall be screened or tested, as appropriate, for dyslexia and related disorders at appropriate times in accordance with a program approved by the State Board of Education. The program must include screening at the end of the school year of each student in kindergarten and each student in the first grade.


(b) In accordance with the program approved by the State Board of Education, the board of trustees of each school district shall provide for the treatment of any student determined to have dyslexia or a related disorder.


(b-1) Unless otherwise provided by law, a student determined to have dyslexia during screening or testing under Subsection (a) or accommodated because of dyslexia may not be rescreened or retested for dyslexia for the purpose of reassessing the student's need for accommodations until the district reevaluates the information obtained from previous screening or testing of the student.


(c) Subject to Subsection (c-1), the State Board of Education shall adopt any rules and standards necessary to administer this section.


(c-1) The agency by rule shall develop procedures designed to allow the agency to:


(1) effectively audit and monitor and periodically conduct site visits of all school districts to ensure that districts are complying with this section, including the program approved by the State Board of Education under this section;


(2) identify any problems school districts experience in complying with this section, including the program approved by the State Board of Education under this section; and


(3) develop reasonable and appropriate remedial strategies to address school district noncompliance and ensure the purposes of this section are accomplished.


(d) In this section:


(1) "Dyslexia" means a disorder of constitutional origin manifested by a difficulty in learning to read, write, or spell, despite conventional instruction, adequate intelligence, and sociocultural opportunity.


(2) "Related disorders" includes disorders similar to or related to dyslexia, such as developmental auditory imperception, dysphasia, specific developmental dyslexia, developmental dysgraphia, and developmental spelling disability.


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


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 635 (S.B. 866), Sec. 3, eff. June 17, 2011.


Acts 2017, 85th Leg., R.S., Ch. 1044 (H.B. 1886), Sec. 5, eff. June 15, 2017.


Acts 2019, 86th Leg., R.S., Ch. 450 (S.B. 2075), Sec. 3, eff. June 4, 2019.


Sec. 38.0031. CLASSROOM TECHNOLOGY PLAN FOR STUDENTS WITH DYSLEXIA. (a) The agency shall establish a committee to develop a plan for integrating technology into the classroom to help accommodate students with dyslexia. The plan must:


(1) determine the classroom technologies that are useful and practical in assisting public schools in accommodating students with dyslexia, considering budget constraints of school districts; and


(2) develop a strategy for providing those effective technologies to students.


(b) The agency shall provide the plan and information about the availability and benefits of the technologies identified under Subsection (a)(1) to school districts.


(c) A member of the committee established under Subsection (a) is not entitled to reimbursement for travel expenses incurred by the member under this section unless agency funds are available for that purpose.


Added by Acts 2011, 82nd Leg., R.S., Ch. 635 (S.B. 866), Sec. 4, eff. June 17, 2011.


Sec. 38.0032. DYSLEXIA TRAINING OPPORTUNITIES. (a) The agency shall annually develop a list of training opportunities regarding dyslexia that satisfy the requirements of Section 21.054(b). The list of training opportunities must include at least one opportunity that is available online.


(b) A training opportunity included in the list developed under Subsection (a) must:


(1) comply with the knowledge and practice standards of an international organization on dyslexia; and


(2) enable an educator to:


(A) understand and recognize dyslexia; and


(B) implement instruction that is systematic, explicit, and evidence-based to meet the educational needs of a student with dyslexia.


Added by Acts 2017, 85th Leg., R.S., Ch. 1044 (H.B. 1886), Sec. 6, eff. June 15, 2017.


Sec. 38.004. CHILD ABUSE REPORTING AND PROGRAMS. (a) The agency shall develop a policy governing the reports of child abuse or neglect, including reports related to the trafficking of a child under Section 20A.02(a)(5), (6), (7), or (8), Penal Code, as required by Chapter 261, Family Code, for school districts, open-enrollment charter schools, and their employees. The policy must provide for cooperation with law enforcement child abuse investigations without the consent of the child's parents if necessary, including investigations by the Department of Family and Protective Services. The policy must require each school district and open-enrollment charter school employee to report child abuse or neglect, including the trafficking of a child under Section 20A.02(a)(5) or (7), Penal Code, in the manner required by Chapter 261, Family Code. Each school district and open-enrollment charter school shall adopt the policy.


(a-1) The agency shall:


(1) maintain on the agency Internet website a list of links to websites that provide information regarding the prevention of child abuse; and


(2) develop and periodically update a training program on prevention of child abuse that a school district may use for staff development.


(b) Each school district shall provide child abuse antivictimization programs in elementary and secondary schools.


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


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 561 (S.B. 1456), Sec. 1, eff. June 16, 2007.


Acts 2013, 83rd Leg., R.S., Ch. 592 (S.B. 939), Sec. 1, eff. September 1, 2013.


Acts 2015, 84th Leg., R.S., Ch. 332 (H.B. 10), Sec. 6, eff. September 1, 2015.


Sec. 38.0041. POLICIES ADDRESSING SEXUAL ABUSE AND OTHER MALTREATMENT OF CHILDREN. (a) Each school district and open-enrollment charter school shall adopt and implement a policy addressing sexual abuse, sex trafficking, and other maltreatment of children, to be included in the district improvement plan under Section 11.252 and any informational handbook provided to students and parents.


(a-1) A school district may collaborate with local law enforcement and outside consultants with expertise in the prevention of sexual abuse and sex trafficking to create the policy required under Subsection (a), and to create a referral protocol for high-risk students.


(b) A policy required by this section must address:


(1) methods for increasing staff, student, and parent awareness of issues regarding sexual abuse, sex trafficking, and other maltreatment of children, including prevention techniques and knowledge of likely warning signs indicating that a child may be a victim of sexual abuse, sex trafficking, or other maltreatment, using resources developed by the agency or the commissioner regarding those issues, including resources developed by the agency under Section 38.004;


(2) actions that a child who is a victim of sexual abuse, sex trafficking, or other maltreatment should take to obtain assistance and intervention; and


(3) available counseling options for students affected by sexual abuse, sex trafficking, or other maltreatment.


(c) The methods under Subsection (b)(1) for increasing awareness of issues regarding sexual abuse, sex trafficking, and other maltreatment of children must include training, as provided by this subsection, concerning prevention techniques for and recognition of sexual abuse, sex trafficking, and all other maltreatment of children, including the sexual abuse, sex trafficking, and other maltreatment of children with significant cognitive disabilities. The training:


(1) must be provided, as part of a new employee orientation, to all new school district and open-enrollment charter school employees and to existing district and open-enrollment charter school employees on a schedule adopted by the agency by rule until all district and open-enrollment charter school employees have taken the training; and


(2) must include training concerning:


(A) factors indicating a child is at risk for sexual abuse, sex trafficking, or other maltreatment;


(B) likely warning signs indicating a child may be a victim of sexual abuse, sex trafficking, or other maltreatment;


(C) internal procedures for seeking assistance for a child who is at risk for sexual abuse, sex trafficking, or other maltreatment, including referral to a school counselor, a social worker, or another mental health professional;


(D) techniques for reducing a child's risk of sexual abuse, sex trafficking, or other maltreatment; and


(E) community organizations that have relevant existing research-based programs that are able to provide training or other education for school district or open-enrollment charter school staff members, students, and parents.


(d) For any training under Subsection (c), each school district and open-enrollment charter school shall maintain records that include the name of each district or charter school staff member who participated in the training.


(e) If a school district or open-enrollment charter school determines that the district or charter school does not have sufficient resources to provide the training required under Subsection (c), the district or charter school shall work in conjunction with a community organization to provide the training at no cost to the district or charter school.


(f) The training under Subsection (c) may be included in staff development under Section 21.451.


(g) A school district or open-enrollment charter school employee may not be subject to any disciplinary proceeding, as defined by Section 22.0512(b), resulting from an action taken in compliance with this section. The requirements of this section are considered to involve an employee's judgment and discretion and are not considered ministerial acts for purposes of immunity from liability under Section 22.0511. Nothing in this section may be considered to limit the immunity from liability provided under Section 22.0511.


(h) For purposes of this section, "other maltreatment" has the meaning assigned by Section 42.002, Human Resources Code.


Added by Acts 2009, 81st Leg., R.S., Ch. 1115 (H.B. 1041), Sec. 2, eff. June 19, 2009.


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 1323 (S.B. 471), Sec. 2, eff. June 17, 2011.


Acts 2013, 83rd Leg., R.S., Ch. 443 (S.B. 715), Sec. 34, eff. June 14, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 592 (S.B. 939), Sec. 2, eff. September 1, 2013.


Acts 2017, 85th Leg., R.S., Ch. 762 (S.B. 2039), Sec. 2, eff. June 12, 2017.


Reenacted and amended by Acts 2019, 86th Leg., R.S., Ch. 303 (H.B. 111), Sec. 1, eff. May 31, 2019.


Sec. 38.0042. POSTING CHILD ABUSE HOTLINE TELEPHONE NUMBER. (a) Each public school and open-enrollment charter school shall post in a clearly visible location in a public area of the school that is readily accessible to students a sign in English and in Spanish that contains the toll-free telephone number operated by the Department of Family and Protective Services to receive reports of child abuse or neglect.


(b) The commissioner may adopt rules relating to the size and location of the sign required by Subsection (a).


Added by Acts 2013, 83rd Leg., R.S., Ch. 592 (S.B. 939), Sec. 3, eff. September 1, 2013.


Sec. 38.005. PROTECTIVE EYE DEVICES IN PUBLIC SCHOOLS. Each teacher and student must wear industrial-quality eye-protective devices in appropriate situations as determined by school district policy.


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


Sec. 38.006. E-CIGARETTES AND TOBACCO PRODUCTS ON SCHOOL PROPERTY. (a) In this section, "e-cigarette" has the meaning assigned by Section 161.081, Health and Safety Code.


(b) The board of trustees of a school district shall:


(1) prohibit smoking or using e-cigarettes or tobacco products at a school-related or school-sanctioned activity on or off school property;


(2) prohibit students from possessing e-cigarettes or tobacco products at a school-related or school-sanctioned activity on or off school property; and


(3) ensure that school personnel enforce the policies on school property.


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


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 181 (S.B. 97), Sec. 38, eff. October 1, 2015.


Sec. 38.007. ALCOHOL-FREE SCHOOL ZONES. (a) The board of trustees of a school district shall prohibit the use of alcoholic beverages at a school-related or school-sanctioned activity on or off school property.


(a-1) This section does not apply to a performing arts facility leased to a nonprofit organization for an event as provided by Section 11.179.


(b) The board of trustees of a school district shall attempt to provide a safe alcohol-free environment to students coming to or going from school. The board of trustees may cooperate with local law enforcement officials and the Texas Alcoholic Beverage Commission in attempting to provide this environment and in enforcing Sections 101.75, 109.33, and 109.59, Alcoholic Beverage Code. Additionally, the board, if a majority of the area of a district is located in a municipality with a population of 900,000 or more, may petition the commissioners court of the county in which the district is located or the governing board of an incorporated city or town in which the district is located to adopt a 1,000-foot zone under Section 109.33, Alcoholic Beverage Code.


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


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 834 (H.B. 2633), Sec. 4, eff. September 1, 2019.


Sec. 38.008. POSTING OF STEROID LAW NOTICE. Each school in a school district in which there is a grade level of seven or higher shall post in a conspicuous location in the school gymnasium and each other place in a building where physical education classes are conducted the following notice:


Anabolic steroids are for medical use only. State law prohibits possessing, dispensing, delivering, or administering an anabolic steroid in any manner not allowed by state law. State law provides that body building, muscle enhancement, or the increase of muscle bulk or strength through the use of an anabolic steroid or human growth hormone by a person who is in good health is not a valid medical purpose. Only a medical doctor may prescribe an anabolic steroid or human growth hormone for a person. A violation of state law concerning anabolic steroids or human growth hormones is a criminal offense punishable by confinement in jail or imprisonment in the Texas Department of Criminal Justice.


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


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 25.050, eff. September 1, 2009.


Sec. 38.009. ACCESS TO MEDICAL RECORDS. (a) A school administrator, nurse, or teacher is entitled to access to a student's medical records maintained by the school district for reasons determined by district policy.


(b) A school administrator, nurse, or teacher who views medical records under this section shall maintain the confidentiality of those medical records.


(c) This section does not authorize a school administrator, nurse, or teacher to require a student to be tested to determine the student's medical condition or status.


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


Sec. 38.0095. PARENTAL ACCESS TO MEDICAL RECORDS. (a) A parent or guardian of a student is entitled to access to the student's medical records maintained by a school district.


(b) On request of a student's parent or guardian, the school district shall provide a copy of the student's medical records to the parent or guardian. The district may not impose a charge for providing the copy that exceeds the charge authorized by Section 552.261, Government Code, for providing a copy of public information.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 3, eff. June 19, 1999.


Sec. 38.010. OUTSIDE COUNSELORS. (a) A school district or school district employee may not refer a student to an outside counselor for care or treatment of a chemical dependency or an emotional or psychological condition unless the district:


(1) obtains prior written consent for the referral from the student's parent;


(2) discloses to the student's parent any relationship between the district and the outside counselor;


(3) informs the student and the student's parent of any alternative public or private source of care or treatment reasonably available in the area;


(4) requires the approval of appropriate school district personnel before a student may be referred for care or treatment or before a referral is suggested as being warranted; and


(5) specifically prohibits any disclosure of a student record that violates state or federal law.


(b) In this section, "parent" includes a managing conservator or guardian.


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


Sec. 38.0101. AUTHORITY TO EMPLOY OR CONTRACT WITH NONPHYSICIAN MENTAL HEALTH PROFESSIONAL. (a) A school district may employ or contract with one or more nonphysician mental health professionals.


(b) In this section, "nonphysician mental health professional" means:


(1) a psychologist licensed to practice in this state and designated as a health-service provider;


(2) a registered nurse with a master's or doctoral degree in psychiatric nursing;


(3) a licensed clinical social worker;


(4) a professional counselor licensed to practice in this state; or


(5) a marriage and family therapist licensed to practice in this state.


Added by Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.12, eff. December 1, 2019.


Sec. 38.011. DIETARY SUPPLEMENTS. (a) A school district employee may not:


(1) knowingly sell, market, or distribute a dietary supplement that contains performance enhancing compounds to a primary or secondary education student with whom the employee has contact as part of the employee's school district duties; or


(2) knowingly endorse or suggest the ingestion, intranasal application, or inhalation of a dietary supplement that contains performance enhancing compounds by a primary or secondary education student with whom the employee has contact as part of the employee's school district duties.


(b) This section does not prohibit a school district employee from:


(1) providing or endorsing a dietary supplement that contains performance enhancing compounds to, or suggesting the ingestion, intranasal application, or inhalation of a dietary supplement that contains performance enhancing compounds by, the employee's child; or


(2) selling, marketing, or distributing a dietary supplement that contains performance enhancing compounds to, or endorsing or suggesting the ingestion, intranasal application, or inhalation of a dietary supplement that contains performance enhancing compounds by, a primary or secondary education student as part of activities that:


(A) do not occur on school property or at a school-related function;


(B) are entirely separate from any aspect of the employee's employment with the school district; and


(C) do not in any way involve information about or contacts with students that the employee has had access to, directly or indirectly, through any aspect of the employee's employment with the school district.


(c) A person who violates this section commits an offense. An offense under this section is a Class C misdemeanor.


(d) In this section:


(1) "Dietary supplement" has the meaning assigned by 21 U.S.C. Section 321 and its subsequent amendments.


(2) "Performance enhancing compound" means a manufactured product for oral ingestion, intranasal application, or inhalation that:


(A) contains a stimulant, amino acid, hormone precursor, herb or other botanical, or any other substance other than an essential vitamin or mineral; and


(B) is intended to increase athletic or intellectual performance, promote muscle growth, or increase an individual's endurance or capacity for exercise.


Added by Acts 1999, 76th Leg., ch. 1086, Sec. 1, eff. Sept. 1, 1999.


Sec. 38.012. NOTICE CONCERNING HEALTH CARE SERVICES. (a) Before a school district or school may expand or change the health care services available at a school in the district from those that were available on January 1, 1999, the board of trustees must:


(1) hold a public hearing at which the board discloses all information on the proposed health care services, including:


(A) all health care services to be provided;


(B) whether federal law permits or requires any health care service provided to be kept confidential from parents;


(C) whether a child's medical records will be accessible to the child's parent;


(D) information concerning grant funds to be used;


(E) the titles of persons who will have access to the medical records of a student; and


(F) the security measures that will be used to protect the privacy of students' medical records; and


(2) approve the expansion or change by a record vote.


(b) A hearing under Subsection (a) must include an opportunity for public comment on the proposal.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 2, eff. June 19, 1999.


Sec. 38.013. COORDINATED HEALTH PROGRAM FOR ELEMENTARY, MIDDLE, AND JUNIOR HIGH SCHOOL STUDENTS. (a) The agency shall make available to each school district one or more coordinated health programs in elementary school, middle school, and junior high school. Each program must provide for coordinating education and services related to:


(1) physical health education, including programs designed to prevent obesity, cardiovascular disease, oral diseases, and Type 2 diabetes and programs designed to promote the role of proper nutrition;


(2) mental health education, including education about mental health conditions, mental health well-being, skills to manage emotions, establishing and maintaining positive relationships, and responsible decision-making;


(3) substance abuse education, including education about alcohol abuse, prescription drug abuse, and abuse of other controlled substances;


(4) physical education and physical activity; and


(5) parental involvement.


(a-1) The commissioner by rule shall adopt criteria for evaluating a coordinated health program before making the program available under Subsection (a). Before adopting the criteria, the commissioner shall request review and comment concerning the criteria from the Department of State Health Services School Health Advisory Committee. The commissioner may make available under Subsection (a) only those programs that meet criteria adopted under this subsection.


(b) The agency shall notify each school district of the availability of the programs.


(c) The commissioner by rule shall adopt criteria for evaluating the nutritional services component of a program under this section that includes an evaluation of program compliance with the Department of Agriculture guidelines relating to foods of minimal nutritional value.


Added by Acts 2001, 77th Leg., ch. 907, Sec. 3, eff. June 14, 2001. Amended by Acts 2003, 78th Leg., ch. 944, Sec. 3, eff. Sept. 1, 2003.


Amended by:


Acts 2005, 79th Leg., Ch. 784 (S.B. 42), Sec. 3, eff. June 17, 2005.


Acts 2005, 79th Leg., Ch. 784 (S.B. 42), Sec. 4, eff. June 17, 2005.


Acts 2013, 83rd Leg., R.S., Ch. 1399 (H.B. 2483), Sec. 1, eff. June 14, 2013.


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.13, eff. December 1, 2019.


Sec. 38.014. IMPLEMENTATION OF COORDINATED HEALTH PROGRAM FOR ELEMENTARY, MIDDLE, AND JUNIOR HIGH SCHOOL STUDENTS. (a) Each school district shall:


(1) participate in appropriate training for the implementation of the program approved by the agency under Section 38.013; and


(2) implement the program in each elementary school, middle school, and junior high school in the district.


(b) The agency, in cooperation with the Texas Department of Health, shall adopt a schedule for regional education service centers to provide necessary training under this section.


Added by Acts 2001, 77th Leg., ch. 907, Sec. 3, eff. June 14, 2001.


Amended by:


Acts 2005, 79th Leg., Ch. 784 (S.B. 42), Sec. 5, eff. June 17, 2005.


Acts 2005, 79th Leg., Ch. 784 (S.B. 42), Sec. 6, eff. June 17, 2005.


Sec. 38.0141. REPORTING OF CERTAIN HEALTH AND SAFETY INFORMATION REQUIRED. (a) Each school district shall provide to the agency information as required by the commissioner, including statistics and data, relating to student health and physical activity and information described by Sections 28.004(k)(2), (3), and (4) presented in a form determined by the commissioner. The district shall provide the information required by this subsection for the district and for each campus in the district.


(b) Not later than one year after the agency receives the information required by Subsection (a), the commissioner shall complete a report on physical education provided by each school district and publish the report on the agency's Internet website.


(c) The report must include:


(1) the number of physical education classes offered at each campus in the district and detail the number of days, classes, and minutes offered each week by each campus;


(2) the ratio of students enrolled in physical education classes in the district compared to the overall enrollment;


(3) the average physical education class size at each campus in the district;


(4) the number of physical education teachers in the district who are licensed, certified, or endorsed by an accredited teacher preparation program to teach physical education;


(5) whether each campus in the district has the appropriate equipment and adequate facilities for students to engage in the amount and intensity of physical activity required under Section 28.002;


(6) whether the district allows modifications or accommodations that allow physical education courses to meet the needs of students with disabilities; and


(7) whether the district has a policy that allows teachers or administrators in the district to withhold physical activity from a student as punishment.


Added by Acts 2005, 79th Leg., Ch. 784 (S.B. 42), Sec. 7, eff. June 17, 2005.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 1126 (S.B. 1873), Sec. 1, eff. June 15, 2017.


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 3.02, eff. December 1, 2019.


Sec. 38.015. SELF-ADMINISTRATION OF PRESCRIPTION ASTHMA OR ANAPHYLAXIS MEDICINE BY STUDENTS. (a) In this section:


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


(2) "Self-administration of prescription asthma or anaphylaxis medicine" means a student's discretionary use of prescription asthma or anaphylaxis medicine.


(b) A student with asthma or anaphylaxis is entitled to possess and self-administer prescription asthma or anaphylaxis medicine while on school property or at a school-related event or activity if:


(1) the prescription medicine has been prescribed for that student as indicated by the prescription label on the medicine;


(2) the student has demonstrated to the student's physician or other licensed health care provider and the school nurse, if available, the skill level necessary to self-administer the prescription medication, including the use of any device required to administer the medication;


(3) the self-administration is done in compliance with the prescription or written instructions from the student's physician or other licensed health care provider; and


(4) a parent of the student provides to the school:


(A) a written authorization, signed by the parent, for the student to self-administer the prescription medicine while on school property or at a school-related event or activity; and


(B) a written statement from the student's physician or other licensed health care provider, signed by the physician or provider, that states:


(i) that the student has asthma or anaphylaxis and is capable of self-administering the prescription medicine;


(ii) the name and purpose of the medicine;


(iii) the prescribed dosage for the medicine;


(iv) the times at which or circumstances under which the medicine may be administered; and


(v) the period for which the medicine is prescribed.


(c) The physician's statement must be kept on file in the office of the school nurse of the school the student attends or, if there is not a school nurse, in the office of the principal of the school the student attends.


(d) This section does not:


(1) waive any liability or immunity of a governmental unit or its officers or employees; or


(2) create any liability for or a cause of action against a governmental unit or its officers or employees.


(e) The commissioner may adopt rules and prescribe forms to assist in the implementation of this section.


Added by Acts 2001, 77th Leg., ch. 511, Sec. 1, eff. June 11, 2001. Renumbered from Education Code Sec. 38.013 by Acts 2003, 78th Leg., ch. 1275, Sec. 2(19), eff. Sept. 1, 2003.


Amended by:


Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 10.01, eff. May 31, 2006.


Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 10.02, eff. May 31, 2006.


Sec. 38.0151. POLICIES FOR CARE OF CERTAIN STUDENTS AT RISK FOR ANAPHYLAXIS. (a) The board of trustees of each school district and the governing body or an appropriate officer of each open-enrollment charter school shall adopt and administer a policy for the care of students with a diagnosed food allergy at risk for anaphylaxis based on "Guidelines for the Care of Students With Food Allergies At-Risk for Anaphylaxis" developed by the commissioner of state health services under this section and updated by the commissioner of state health services in consultation with an ad hoc committee appointed by the commissioner of state health services as provided by Section 38.0152. The guidelines and any recommendation to update the guidelines regarding medical treatment or therapy must be scientifically valid.


(b) A school district or open-enrollment charter school shall annually review and, as necessary, revise its policy for the care of students with a diagnosed food allergy at risk for anaphylaxis to ensure the policy is consistent with the most current version of the guidelines described by Subsection (a).


(c) The guidelines described by Subsection (a) may not:


(1) require a school district or open-enrollment charter school to purchase prescription anaphylaxis medication, such as epinephrine, or require any other expenditure that would result in a negative fiscal impact on the district or charter school; or


(2) require the personnel of a district or charter school to administer anaphylaxis medication, such as epinephrine, to a student unless the anaphylaxis medication is prescribed for that student.


(d) This section does not:


(1) waive any liability or immunity of a governmental entity or its officers or employees; or


(2) create any liability for or a cause of action against a governmental entity or its officers or employees.


(e) The agency shall post the guidelines described by Subsection (a) on the agency's website with any other information relating to students with special health needs. The information posted by the agency must include a summary of the guidelines. The agency shall annually review and, as necessary, revise the summary and any other information to reflect the most current version of the guidelines.


(f) A school district or open-enrollment charter school that provides for the maintenance, administration, and disposal of epinephrine auto-injectors under Subchapter E is not required to comply with this section.


(g) Each school year, the board of trustees of each school district and the governing body of each open-enrollment charter school shall post a summary of the guidelines on the district's or school's Internet website, including instructions on obtaining access to the complete guidelines document. The district's or school's website must be accessible by each student enrolled in the district or school and a parent or guardian of each student. Any forms used by a district or school requesting information from a parent or guardian enrolling a child with a food allergy in the district or school must include information to access on the district's or school's Internet website a summary of the guidelines and instructions on obtaining access to the complete guidelines document.


(h) The guidelines described by Subsection (a) may not:


(1) require a school district or open-enrollment charter school to purchase treatments approved by the United States Food and Drug Administration or make any other expenditure that would result in a negative fiscal impact on the district or school; or


(2) require the personnel of a district or school to administer treatments approved by the United States Food and Drug Administration to a student unless the medication is prescribed for that student by the student's physician.


(i) This section does not:


(1) waive any liability or immunity of a school district or open-enrollment charter school or district or school officers or employees; or


(2) create any liability for or a cause of action against a school district or open-enrollment charter school or district or school officers or employees.


(j) Notwithstanding any other law, this section, including any information or materials developed under this section and the dissemination of information or materials developed under this section, does not create a civil, criminal, or administrative cause of action or liability or create a standard of care, obligation, or duty that provides the basis for a cause of action.


Added by Acts 2011, 82nd Leg., R.S., Ch. 590 (S.B. 27), Sec. 1, eff. June 17, 2011.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 3, eff. May 28, 2015.


Acts 2019, 86th Leg., R.S., Ch. 975 (S.B. 869), Sec. 1, eff. June 14, 2019.


Sec. 38.0152. COMMITTEE TO ASSIST IN UPDATING GUIDELINES FOR CARE OF STUDENTS AT RISK FOR ANAPHYLAXIS. (a) In this section:


(1) "Commissioner" means the commissioner of state health services.


(2) "Department" means the Department of State Health Services.


(3) "Guidelines" means "Guidelines for the Care of Students With Food Allergies At-Risk for Anaphylaxis" on which school district and open-enrollment charter school policies for the care of students with a diagnosed food allergy at risk for anaphylaxis are based as provided by Section 38.0151.


(b) The commissioner shall appoint members to an ad hoc committee to consult with the commissioner on updating the current guidelines to incorporate and specifically reference any new food-allergy management best practices and treatments, including new methods, treatments, and therapies to reduce the risk of allergic reactions.


(c) The committee must include:


(1) not more than one representative from:


(A) the department; and


(B) the Texas Nurses Association;


(2) at least two individuals from one or more national patient advocacy organizations representing the interests of food allergies, anaphylaxis, and related medical issues, including asthma;


(3) one principal of a public elementary school campus at which one or more students with a diagnosed food allergy at risk for anaphylaxis are enrolled;


(4) one classroom teacher employed at a public elementary school campus at which one or more students with a diagnosed food allergy at risk for anaphylaxis are enrolled;


(5) one superintendent of a school district;


(6) one member of a board of trustees of a school district;


(7) one member of a governing body of an open-enrollment charter school;


(8) at least two parents of public school students with a diagnosed food allergy at risk for anaphylaxis;


(9) at least four physicians board certified in allergy and immunology by the American Board of Allergy and Immunology; and


(10) at least one physician board certified in general pediatrics by the American Board of Pediatrics who is a member of a statewide pediatric organization.


(d) Ad hoc committee members shall serve for a period determined by the commissioner. On the resignation of a member of the committee or the removal of a member from the committee by the commissioner, the commissioner shall appoint a new member to the committee who qualifies for the committee in the same manner that the member who resigned or is removed qualified.


(e) Section 2110.005, Government Code, does not apply to the ad hoc committee appointed under this section.


(f) Any recommendations on updating the current guidelines regarding medical treatment or therapies must be submitted by the physicians directly to the commissioner, provided that those recommendations may only be submitted to the commissioner if approved by a majority of the physicians serving on the committee.


(g) At least once every three years, the commissioner shall order a meeting of the committee to update the guidelines to incorporate any new food-allergy management best practices and treatments.


(h) The commissioner may order a meeting of the committee at any time the commissioner determines necessary for the committee to:


(1) discuss the protection of students with food allergies at risk for anaphylaxis; and


(2) update the guidelines.


Added by Acts 2019, 86th Leg., R.S., Ch. 975 (S.B. 869), Sec. 2, eff. June 14, 2019.


Sec. 38.016. PSYCHOTROPIC DRUGS AND PSYCHIATRIC EVALUATIONS OR EXAMINATIONS. (a) In this section:


(1) "Nonphysician mental health professional" has the meaning assigned by Section 38.0101.


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


(3) "Psychotropic drug" means a substance that is:


(A) used in the diagnosis, treatment, or prevention of a disease or as a component of a medication; and


(B) intended to have an altering effect on perception, emotion, or behavior.


(b) A school district employee may not:


(1) recommend that a student use a psychotropic drug; or


(2) suggest any particular diagnosis; or


(3) use the refusal by a parent to consent to administration of a psychotropic drug to a student or to a psychiatric evaluation or examination of a student as grounds, by itself, for prohibiting the child from attending a class or participating in a school-related activity.


(c) Subsection (b) does not:


(1) prevent an appropriate referral under the child find system required under 20 U.S.C. Section 1412, as amended;


(2) prohibit a school district employee, or an employee of an entity with which the district contracts, who is a registered nurse, advanced nurse practitioner, physician, or nonphysician mental health professional licensed or certified to practice in this state from recommending that a child be evaluated by a physician or nonphysician mental health professional; or


(3) prohibit a school employee from discussing any aspect of a child's behavior or academic progress with the child's parent or another school district employee.


(d) The board of trustees of each school district shall adopt a policy to ensure implementation and enforcement of this section.


(e) An act in violation of Subsection (b) does not override the immunity from personal liability granted in Section 22.0511 or other law or the district's sovereign and governmental immunity.


Added by Acts 2003, 78th Leg., ch. 1058, Sec. 1, eff. June 20, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 921 (H.B. 3167), Sec. 4.008, eff. September 1, 2007.


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.14, eff. December 1, 2019.


Sec. 38.017. AVAILABILITY OF AUTOMATED EXTERNAL DEFIBRILLATOR. (a) Each school district shall make available at each campus in the district at least one automated external defibrillator, as defined by Section 779.001, Health and Safety Code. A campus defibrillator must be readily available during any University Interscholastic League athletic competition held on the campus. In determining the location at which to store a campus defibrillator, the principal of the campus shall consider the primary location on campus where students engage in athletic activities.


(b) To the extent practicable, each school district, in cooperation with the University Interscholastic League, shall make reasonable efforts to ensure that an automated external defibrillator is available at each University Interscholastic League athletic practice held at a district campus. If a school district is not able to make an automated external defibrillator available in the manner provided by this subsection, the district shall determine the extent to which an automated external defibrillator must be available at each University Interscholastic League athletic practice held at a district campus. The determination must be based, in addition to any other appropriate considerations, on relevant medical information.


(c) Each school district, in cooperation with the University Interscholastic League, shall determine the extent to which an automated external defibrillator must be available at each University Interscholastic League athletic competition held at a location other than a district campus. The determination must be based, in addition to any other appropriate considerations, on relevant medical information and whether emergency services personnel are present at the athletic competition under a contract with the school district.


(d) Each school district shall ensure the presence at each location at which an automated external defibrillator is required under Subsection (a), (b), or (c) of at least one campus or district employee trained in the proper use of the defibrillator at any time a substantial number of district students are present at the location.


(e) A school district shall ensure that an automated external defibrillator is used and maintained in accordance with standards established under Chapter 779, Health and Safety Code.


(f) This section does not:


(1) waive any immunity from liability of a school district or its officers or employees;


(2) create any liability for or a cause of action against a school district or its officers or employees; or


(3) waive any immunity from liability under Section 74.151, Civil Practice and Remedies Code.


(g) This subsection applies only to a private school that receives an automated external defibrillator from the agency or receives funding from the agency to purchase or lease an automated external defibrillator. A private school shall:


(1) make available at the school at least one automated external defibrillator; and


(2) in coordination with the Texas Association of Private and Parochial Schools, adopt a policy concerning the availability of an automated external defibrillator at athletic competitions and practices in a manner consistent with the requirements prescribed by this section, including the training and maintenance requirements prescribed by this section.


(h) A school district may seek and accept gifts, grants, or other donations to pay the district's cost of purchasing automated external defibrillators required under this section.


Added by Acts 2007, 80th Leg., R.S., Ch. 1371 (S.B. 7), Sec. 6, eff. June 15, 2007.


Sec. 38.018. PROCEDURES REGARDING RESPONSE TO CARDIAC ARREST. (a) Each school district and private school shall develop safety procedures for a district or school employee or student to follow in responding to a medical emergency involving cardiac arrest, including the appropriate response time in administering cardiopulmonary resuscitation, using an automated external defibrillator, as defined by Section 779.001, Health and Safety Code, or calling a local emergency medical services provider.


(b) A private school is required to develop safety procedures under this section only if the school receives an automated external defibrillator from the agency or receives funding from the agency to purchase or lease an automated external defibrillator.


Added by Acts 2007, 80th Leg., R.S., Ch. 1371 (S.B. 7), Sec. 6, eff. June 15, 2007.


Sec. 38.0181. CARDIOVASCULAR SCREENING PILOT PROGRAM. (a) In this section, "pilot program" means the cardiovascular screening pilot program.


(b) The commissioner shall establish a pilot program under which sixth grade students at participating campuses are administered a cardiovascular screening, including an electrocardiogram and an echocardiogram.


(c) The commissioner shall select campuses to participate in the pilot program. In selecting campuses, the commissioner shall ensure that the cardiovascular screening is administered to an ethnically diverse range of students.


(d) The commissioner may accept grants and donations for use in administering the pilot program.


(e) The commissioner shall require a participating campus to provide the results of a student's cardiovascular screening to the student's parent or guardian.


(f) Expired.


(g) The commissioner may adopt rules necessary to administer this section.


Added by Acts 2007, 80th Leg., R.S., Ch. 1371 (S.B. 7), Sec. 6, eff. June 15, 2007.


Renumbered from Education Code, Section 38.019 by Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 27.001(6), eff. September 1, 2009.


Sec. 38.019. IMMUNIZATION AWARENESS PROGRAM. (a) A school district that maintains an Internet website shall post prominently on the website:


(1) a list, in English and Spanish, of:


(A) the immunizations required for admission to public school by rules of the Department of State Health Services adopted under Section 38.001;


(B) any immunizations or vaccines recommended for public school students by the Department of State Health Services; and


(C) health clinics in the district that offer the influenza vaccine, to the extent those clinics are known to the district; and


(2) a link to the Department of State Health Services Internet website where a person may obtain information relating to the procedures for claiming an exemption from the immunization requirements of Section 38.001.


(a-1) The link to the Department of State Health Services Internet website provided under Subsection (a)(2) must be presented in the same manner as the information provided under Subsection (a)(1).


(b) The list of recommended immunizations or vaccines under Subsection (a)(2) must include the influenza vaccine, unless the Department of State Health Services requires the influenza vaccine for admission to public school.


Added by Acts 2007, 80th Leg., R.S., Ch. 94 (H.B. 1059), Sec. 3, eff. May 15, 2007.


Sec. 38.021. USE OF SUNSCREEN PRODUCTS. (a) A student may possess and use a topical sunscreen product while on school property or at a school-related event or activity to avoid overexposure to the sun and not for the medical treatment of an injury or illness if the product is approved by the federal Food and Drug Administration for over-the-counter use.


(b) This section does not:


(1) waive any immunity from liability of a school district, its board of trustees, or its employees; or


(2) create any liability for or a cause of action against a school district, its board of trustees, or its employees.


Added by Acts 2015, 84th Leg., R.S., Ch. 1139 (S.B. 265), Sec. 1, eff. June 19, 2015.


Sec. 38.022. SCHOOL VISITORS. (a) A school district may require a person who enters a district campus to display the person's driver's license or another form of identification containing the person's photograph issued by a governmental entity.


(b) A school district may establish an electronic database for the purpose of storing information concerning visitors to district campuses. Information stored in the electronic database may be used only for the purpose of school district security and may not be sold or otherwise disseminated to a third party for any purpose.


(c) A school district may verify whether a visitor to a district campus is a sex offender registered with the computerized central database maintained by the Department of Public Safety as provided by Article 62.005, Code of Criminal Procedure, or any other database accessible by the district.


(d) The board of trustees of a school district shall adopt a policy regarding the action to be taken by the administration of a school campus when a visitor is identified as a sex offender.


Added by Acts 2007, 80th Leg., R.S., Ch. 1372 (S.B. 9), Sec. 12, eff. June 15, 2007.


Sec. 38.023. LIST OF RESOURCES CONCERNING INTERNET SAFETY. The agency shall develop and make available to school districts a list of resources concerning Internet safety, including a list of organizations and Internet websites that may assist in educating teachers and students about:


(1) the potential dangers of allowing personal information to appear on an Internet website;


(2) the significance of copyright laws; and


(3) the consequences of cyber-plagiarism and theft of audiovisual works, including motion pictures, software, and sound recordings, through uploading and downloading files on the Internet.


Added by Acts 2007, 80th Leg., R.S., Ch. 751 (H.B. 3171), Sec. 1, eff. June 15, 2007.


Sec. 38.024. INSURANCE AGAINST STUDENT INJURIES. (a) In compliance with this section, the board of trustees of a school district may obtain insurance against bodily injuries sustained by students while training for or engaging in interschool athletic competition or while engaging in school-sponsored activities.


(b) The amount of insurance to be obtained must be in keeping with the financial condition of the school district and may not exceed the amount that, in the opinion of the board of trustees, is reasonably necessary to afford adequate medical treatment of injured students.


(c) The insurance authorized by this section must be obtained from a reliable insurance company authorized to do business in this state and must be on forms approved by the commissioner of insurance.


(d) The cost of the insurance is a legitimate part of the total cost of operating the school district.


(e) The failure of any board of trustees to carry the insurance authorized by this section may not be construed as placing any legal liability on the school district or its officers, agents, or employees for any injury that results.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 534, Sec. 1, eff. Sept. 1, 2001.


Transferred from Education Code, Section 33.085 by Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 7.004(a), eff. September 1, 2009.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 7.004(b), eff. September 1, 2009.


Acts 2015, 84th Leg., R.S., Ch. 92 (H.B. 744), Sec. 1, eff. May 23, 2015.


Sec. 38.026. GRANT PROGRAM FOR BEST PRACTICES IN NUTRITION EDUCATION. (a) The Department of Agriculture shall develop a program under which the department awards grants to public school campuses for best practices in nutrition education.


(b) The Department of Agriculture may solicit and accept gifts, grants, and donations from any public or private source for the purposes of this section.


(c) The Department of Agriculture may adopt rules as necessary to administer a grant program established under this section.


Added by Acts 2009, 81st Leg., R.S., Ch. 728 (S.B. 282), Sec. 2, eff. June 19, 2009.


Sec. 38.027. ELECTRONIC COMMUNICATION POLICY. (a) In this section, "electronic communication" means any communication facilitated by the use of any electronic device, including a telephone, cellular telephone, computer, computer network, personal data assistant, or pager. The term includes e-mails, text messages, instant messages, and any communications made through an Internet website, including a social media website or a social networking website.


(b) A school district shall adopt a written policy concerning electronic communications between a school employee and a student enrolled in the district.


(c) The policy adopted under this section must:


(1) include provisions designed to prevent improper electronic communications between a school employee and a student;


(2) allow a school employee to elect to not disclose to students the employee's personal telephone number or e-mail address; and


(3) include provisions instructing a school employee about the proper method for notifying appropriate local administrators about an incident in which a student engages in improper communications with the school employee.


Added by Acts 2017, 85th Leg., R.S., Ch. 178 (S.B. 7), Sec. 15, eff. September 1, 2017.


Sec. 38.030. TRAUMATIC INJURY RESPONSE PROTOCOL. (a) Each school district and open-enrollment charter school shall develop and annually make available a protocol for school employees and volunteers to follow in the event of a traumatic injury.


(b) The protocol required under this section must:


(1) provide for a school district or open-enrollment charter school to maintain and make available to school employees and volunteers bleeding control stations, as described by Subsection (d), for use in the event of a traumatic injury involving blood loss;


(2) ensure that bleeding control stations are stored in easily accessible areas of the campus that are selected by the district's school safety and security committee or the charter school's governing body;


(3) require that agency-approved training on the use of a bleeding control station in the event of an injury to another person be provided to:


(A) each school district peace officer commissioned under Section 37.081 or school security personnel employed under that section who provides security services at the campus;


(B) each school resource officer who provides law enforcement at the campus; and


(C) all other district or school personnel who may be reasonably expected to use a bleeding control station; and


(4) require the district or charter school to annually offer instruction on the use of a bleeding control station from a school resource officer or other appropriate district or school personnel who has received the training under Subdivision (3) to students enrolled at the campus in grade seven or higher.


(c) A district's school safety and security committee or the charter school's governing body may select, as easily accessible areas of the campus at which bleeding control stations may be stored, areas of the campus where automated external defibrillators are stored.


(d) A bleeding control station required under this section must contain all of the following required supplies in quantities determined appropriate by the superintendent of the district or the director of the school:


(1) tourniquets approved for use in battlefield trauma care by the armed forces of the United States;


(2) chest seals;


(3) compression bandages;


(4) bleeding control bandages;


(5) space emergency blankets;


(6) latex-free gloves;


(7) markers;


(8) scissors; and


(9) instructional documents developed by the American College of Surgeons or the United States Department of Homeland Security detailing methods to prevent blood loss following a traumatic event.


(e) In addition to the items listed under Subsection (d), a school district or open-enrollment charter school may also include in a bleeding control station any medical material or equipment that:


(1) may be readily stored in a bleeding control station;


(2) may be used to adequately treat an injury involving traumatic blood loss; and


(3) is approved by local law enforcement or emergency medical services personnel.


(f) To satisfy the training requirement of Subsection (b)(3), the agency may approve a course of instruction that has been developed or endorsed by:


(1) the American College of Surgeons or a similar organization; or


(2) the emergency medicine department of a health-related institution of higher education or a hospital.


(g) The course of instruction for training described under Subsection (f) may not be provided as an online course. The course of instruction must use nationally recognized, evidence-based guidelines for bleeding control and must incorporate instruction on the psychomotor skills necessary to use a bleeding control station in the event of an injury to another person, including instruction on proper chest seal placement.


(h) The course of instruction described under Subsection (f) may be provided by emergency medical technicians, paramedics, law enforcement officers, firefighters, representatives of the organization or institution that developed or endorsed the training, educators, other public school employees, or other similarly qualified individuals. A course of instruction described under Subsection (f) is not required to provide for certification in bleeding control. If the course of instruction does provide for certification in bleeding control, the instructor must be authorized to provide the instruction for the purpose of certification by the organization or institution that developed or endorsed the course of instruction.


(i) The good faith use of a bleeding control station by a school district or open-enrollment charter school employee to control the bleeding of an injured person is incident to or within the scope of the duties of the employee's position of employment and involves the exercise of judgment or discretion on the part of the employee for purposes of Section 22.0511, and a school district or open-enrollment charter school and the employees of the district or school are immune from civil liability, as provided by that section, from damages or injuries resulting from that good faith use of a bleeding control station. A school district or open-enrollment charter school volunteer is immune from civil liability from damages or injuries resulting from the good faith use of a bleeding control station to the same extent as a professional employee of the district or school, as provided by Section 22.053.


(j) Nothing in this section limits the immunity from liability of a school district, open-enrollment charter school, or district or school employee or volunteer under:


(1) Sections 22.0511 and 22.053;


(2) Section 101.051, Civil Practice and Remedies Code; or


(3) any other applicable law.


(k) This section does not create a cause of action against a school district or open-enrollment charter school or the employees or volunteers of the district or school.


Added by Acts 2019, 86th Leg., R.S., Ch. 1357 (H.B. 496), Sec. 1, eff. June 15, 2019.


Sec. 38.031. NOTICE OF LICE. (a) The board of trustees of an independent school district shall adopt a policy requiring a school nurse of a public elementary school who determines or otherwise becomes aware that a child enrolled in the school has lice shall provide written or electronic notice of that fact to:


(1) the parent of the child with lice as soon as practicable but not later than 48 hours after the administrator or nurse, as applicable, determines or becomes aware of that fact; and


(2) the parent of each child assigned to the same classroom as the child with lice not later than the fifth school day after the date on which the administrator or nurse, as applicable, determines or becomes aware of that fact.


(b) The notice provided under Subsection (a):


(1) must include the recommendations of the Centers for Disease Control and Prevention for the treatment and prevention of lice; and


(2) if the notice is provided under Subsection (a)(2), may not identify the child with lice.


(c) The commissioner shall adopt rules as necessary to implement this section in a manner that complies with federal law regarding confidentiality of student medical or educational information, including the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.) and the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g), and any state law relating to the privacy of student information.


Added by Acts 2017, 85th Leg., R.S., Ch. 925 (S.B. 1566), Sec. 14, eff. September 1, 2017.


Sec. 38.032. SEIZURE MANAGEMENT AND TREATMENT PLAN. (a) The parent or guardian of a student with a seizure disorder may seek care for the student's seizures while the student is at school or participating in a school activity by submitting to the school district at which the student is enrolled a copy of a seizure management and treatment plan developed by the student's parent or guardian and the physician responsible for the student's seizure treatment. The plan must be submitted to and reviewed by the district:


(1) before or at the beginning of the school year;


(2) on enrollment of the student, if the student enrolls in the district after the beginning of the school year; or


(3) as soon as practicable following a diagnosis of a seizure disorder for the student.


(b) A seizure management and treatment plan must:


(1) identify the health care services the student may receive at school or while participating in a school activity;


(2) evaluate the student's ability to manage and level of understanding of the student's seizures; and


(3) be signed by the student's parent or guardian and the physician responsible for the student's seizure treatment.


(c) The care of a student with a seizure disorder by a district employee under a seizure management plan submitted under this section is incident to or within the scope of the duties of the employee's position of employment and involves the exercise of judgment or discretion on the part of the employee for purposes of Section 22.0511.


(d) The immunity from liability provided by Section 22.0511 applies to an action or failure to act by a district employee in administering a medication, assisting with self-administration, or otherwise providing for the care of a student under a seizure management plan submitted for the student under Subsection (a).


Added by Acts 2019, 86th Leg., R.S., Ch. 1039 (H.B. 684), Sec. 2, eff. June 14, 2019.


Text of section as added by Acts 2019, 86th Leg., R.S., Ch. 1039 (H.B. 684), Sec. 2



For text of section as added by Acts 2019, 86th Leg., R.S., Ch. 1042 (H.B. 706), Sec. 1, see other Sec. 38.033.



Sec. 38.033. SEIZURE RECOGNITION AND RELATED FIRST AID TRAINING. (a) A school nurse employed by a school district must complete an agency-approved online course of instruction for school nurses regarding managing students with seizure disorders that includes information about seizure recognition and related first aid.


(b) A school district employee, other than a school nurse, whose duties at the school include regular contact with students must complete an agency-approved online course of instruction for school personnel regarding awareness of students with seizure disorders that includes information about seizure recognition and related first aid.


(c) The agency may approve an online course of instruction provided by a nonprofit national foundation that supports the welfare of individuals with epilepsy and seizure disorders to satisfy the training required under Subsection (a) or (b). An online course of instruction approved by the agency under this subsection that is provided to a school district must be provided by the nonprofit entity free of charge.


(d) The agency shall adopt rules as necessary to administer this section.


Added by Acts 2019, 86th Leg., R.S., Ch. 1039 (H.B. 684), Sec. 2, eff. June 14, 2019.


Text of section as added by Acts 2019, 86th Leg., R.S., Ch. 1042 (H.B. 706), Sec. 1



For text of section as added by Acts 2019, 86th Leg., R.S., Ch. 1039 (H.B. 684), Sec. 2, see other Sec. 38.033.



Sec. 38.033. SCHOOL HEALTH AND RELATED SERVICES PROGRAM; ELIGIBILITY FOR AUDIOLOGY SERVICES. (a) A child is eligible to receive audiology services provided under the school health and related services program if the child:


(1) is 20 years of age or younger;


(2) has a disability or chronic medical condition;


(3) is eligible for Medicaid benefits; and


(4) has been prescribed the services under:


(A) an individualized education program created under the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.); or


(B) a plan created under Section 504, Rehabilitation Act of 1973 (29 U.S.C. Section 794).


(b) The Health and Human Services Commission shall provide reimbursement to a provider under the school health and related services program for audiology services provided to a child who is eligible for the services under Subsection (a).


(c) The executive commissioner of the Health and Human Services Commission, in consultation with the agency, shall adopt rules necessary to implement this section.


Added by Acts 2019, 86th Leg., R.S., Ch. 1042 (H.B. 706), Sec. 1, eff. September 1, 2019.


Sec. 38.036. TRAUMA-INFORMED CARE POLICY. (a) Each school district shall adopt and implement a policy requiring the integration of trauma-informed practices in each school environment. A district must include the policy in the district improvement plan required under Section 11.252.


(b) A policy required by this section must address:


(1) using resources developed by the agency, methods for:


(A) increasing staff and parent awareness of trauma-informed care; and


(B) implementation of trauma-informed practices and care by district and campus staff; and


(2) available counseling options for students affected by trauma or grief.


(c) The methods under Subsection (b)(1) for increasing awareness and implementation of trauma-informed care must include training as provided by this subsection. The training must be provided:


(1) through a program selected from the list of recommended best practice-based programs and research-based practices established under Section 161.325, Health and Safety Code;


(2) as part of any new employee orientation for all new school district educators; and


(3) to existing school district educators on a schedule adopted by the agency by rule that requires educators to be trained at intervals necessary to keep educators informed of developments in the field.


(d) For any training under Subsection (c), each school district shall maintain records that include the name of each district staff member who participated in the training.


(e) Each school district shall report annually to the agency the following information for the district as a whole and for each school campus:


(1) the number of teachers, principals, and counselors employed by the district who have completed training under this section; and


(2) the total number of teachers, principals, and counselors employed by the district.


(f) If a school district determines that the district does not have sufficient resources to provide the training required under Subsection (c), the district may partner with a community mental health organization to provide training that meets the requirements of Subsection (c) at no cost to the district.


(g) The commissioner shall adopt rules as necessary to administer this section.


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 18, eff. June 6, 2019.


SUBCHAPTER B. SCHOOL-BASED HEALTH CENTERS



Sec. 38.051. ESTABLISHMENT OF SCHOOL-BASED HEALTH CENTERS. (a) A school district in this state may, if the district identifies the need, design a model in accordance with this subchapter for the delivery of cooperative health care programs for students and their families and may compete for grants awarded under this subchapter. The model may provide for the delivery of conventional health services and disease prevention of emerging health threats that are specific to the district.


(b) On the recommendation of an advisory council established under Section 38.058 or on the initiative of the board of trustees or the governing body of an open-enrollment charter school, a school district or open-enrollment charter school may establish a school-based health center at one or more campuses to meet the health care needs of students and their families.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.15, eff. December 1, 2019.


Sec. 38.052. CONTRACT FOR SERVICES. A district may contract with a person to provide services at a school-based health center.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Sec. 38.053. PARENTAL CONSENT REQUIRED. (a) A school-based health center may provide services to a student only if the district or the provider with whom the district contracts obtains the written consent of the student's parent or guardian or another person having legal control of the student on a consent form developed by the district or provider. The student's parent or guardian or another person having legal control of the student may give consent for a student to receive ongoing services or may limit consent to one or more services provided on a single occasion.


(b) The consent form must list every service the school-based health center delivers in a format that complies with all applicable state and federal laws and allows a person to consent to one or more categories of services.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Sec. 38.054. CATEGORIES OF SERVICES. The permissible categories of services are:


(1) family and home support;


(2) physical health care, including immunizations;


(3) dental health care;


(4) health education;


(5) preventive health strategies;


(6) treatment for mental health conditions; and


(7) treatment for substance abuse.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.16, eff. December 1, 2019.


Sec. 38.055. USE OF GRANT FUNDS FOR REPRODUCTIVE SERVICES PROHIBITED. Reproductive services, counseling, or referrals may not be provided through a school-based health center using grant funds awarded under this subchapter.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Sec. 38.056. PROVISION OF CERTAIN SERVICES BY LICENSED HEALTH CARE PROVIDER REQUIRED. Any service provided using grant funds awarded under this subchapter must be provided by an appropriate professional who is properly licensed, certified, or otherwise authorized under state law to provide the service.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Sec. 38.057. IDENTIFICATION OF HEALTH-RELATED CONCERNS. (a) The staff of a school-based health center and the person whose consent is obtained under Section 38.053 shall jointly identify any health-related concerns of a student that may be interfering with the student's well-being or ability to succeed in school.


(b) If it is determined that a student is in need of a referral for physical health services or mental health services, the staff of the center shall notify the person whose consent is required under Section 38.053 verbally and in writing of the basis for the referral. The referral may not be provided unless the person provides written consent for the type of service to be provided and provides specific written consent for each treatment occasion or for a course of treatment that includes multiple treatment occasions of the same type of service.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.17, eff. December 1, 2019.


Sec. 38.058. HEALTH EDUCATION AND HEALTH CARE ADVISORY COUNCIL. (a) The board of trustees of a school district or the governing body of an open-enrollment charter school may establish and appoint members to a local health education and health care advisory council to make recommendations to the district or school on the establishment of school-based health centers and to assist the district or school in ensuring that local community values are reflected in the operation of each center and in the provision of health education.


(b) A majority of the members of the council must be parents of students enrolled in the school district or open-enrollment charter school. In addition to the appointees who are parents of students, the board of trustees or governing body shall also appoint at least one person from each of the following groups:


(1) classroom teachers;


(2) school administrators;


(3) school counselors;


(4) health care professionals licensed or certified to practice in this state;


(5) the clergy;


(6) law enforcement;


(7) the business community;


(8) senior citizens; and


(9) students.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.18, eff. December 1, 2019.


Sec. 38.059. ASSISTANCE OF PUBLIC HEALTH AGENCY. (a) A school district may seek assistance in establishing and operating a school-based health center from any public health agency in the community. On request, a public health agency shall cooperate with a district and to the extent practicable, considering the resources of the agency, may provide assistance.


(b) A district and a public health agency may, by agreement, jointly establish, operate, and fund a school-based health center.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Sec. 38.0591. ACCESS TO MENTAL HEALTH SERVICES. The agency, in cooperation with the Health and Human Services Commission, shall develop guidelines for school districts regarding:


(1) partnering with a local mental health authority and with community or other private mental health services providers and substance abuse services providers to increase student access to mental health services; and


(2) obtaining mental health services through the medical assistance program under Chapter 32, Human Resources Code.


Added by Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.19, eff. December 1, 2019.


Sec. 38.060. COORDINATION WITH EXISTING PROVIDERS IN CERTAIN AREAS. (a) This section applies only to a school-based health center serving an area that:


(1) is located in a county with a population not greater than 50,000; or


(2) has been designated under state or federal law as:


(A) a health professional shortage area;


(B) a medically underserved area; or


(C) a medically underserved community by the Texas Department of Rural Affairs.


(b) If a school-based health center is located in an area described by Subsection (a), the school district and the advisory council established under Section 38.058 shall make a good faith effort to identify and coordinate with existing providers to preserve and protect existing health care systems and medical relationships in the area.


(c) The school district or open-enrollment charter school shall keep a record of efforts made to coordinate with existing providers.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 609, Sec. 7, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 9.006(f), eff. Sept. 1, 2003.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 112 (H.B. 1918), Sec. 2, eff. September 1, 2009.


Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.20, eff. December 1, 2019.


Sec. 38.061. COMMUNICATION WITH PRIMARY CARE PHYSICIAN. (a) If a person receiving a medical service from a school-based health center has a primary care physician, the staff of the center shall provide notice of the service the person received to the primary care physician in order to allow the physician to maintain a complete medical history of the person.


(b) The staff of a school-based health center shall, before delivering a medical service to a person with a primary care physician under the state Medicaid program, a state children's health plan program, or a private health insurance or health benefit plan, notify the physician for the purpose of sharing medical information and obtaining authorization for delivering the medical service.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Sec. 38.062. FUNDING FOR PROVISION OF SERVICES. A school district or the provider with whom the district contracts shall seek all available sources of funding to compensate the district or provider for services provided by a school-based health center, including money available under the state Medicaid program, a state children's health plan program, or private health insurance or health benefit plans or available from those persons using a school-based health center who have the ability to pay for the services.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Sec. 38.063. GRANTS. (a) Subject to the availability of federal or state appropriated funds, the commissioner of state health services shall administer a program under which grants are awarded to assist school districts and local health departments, hospitals, health care systems, universities, or nonprofit organizations that contract with school districts with the costs of school-based health centers in accordance with this section.


(b) The commissioner of state health services, by rules adopted in accordance with this section, shall establish procedures for awarding grants. The rules must provide that:


(1) grants are awarded annually through a competitive process to:


(A) school districts; and


(B) local health departments, hospitals, health care systems, universities, or nonprofit organizations that have contracted with school districts to establish and operate school-based health centers;


(2) subject to the availability of federal or state appropriated funds, each grant is for a term of five years; and


(3) a preference is given to school-based health centers in school districts that are located in rural areas or that have low property wealth per student.


(c) All health care programs should be designed to meet the following goals:


(1) reducing student absenteeism;


(2) increasing a student's ability to meet the student's academic potential; and


(3) stabilizing the physical well-being of a student.


(d) A school district, local health department, hospital, health care system, university, or nonprofit organization may not receive more than $250,000 per state fiscal biennium through grants awarded under this section.


(e) To be eligible to receive a grant, a school district, local health department, hospital, health care system, university, or nonprofit organization must provide matching funds in accordance with rules adopted under Subsection (b). The matching funds may be obtained from any source available to the district, local health department, hospital, health care system, university, or nonprofit organization, including in-kind contributions, community or foundation grants, individual contributions, and local governmental agency operating funds.


(e-1) A grant under this section may not be given to a nonprofit organization that offers reproductive services, contraceptive services, counseling, or referrals, or any other services that require a license under Chapter 245, Health and Safety Code, or that is affiliated with a nonprofit organization that is licensed under Chapter 245, Health and Safety Code.


(e-2) A school district, local health department, hospital, health care system, university, or nonprofit organization receiving a grant under this section may use the grant funds to:


(1) establish a new school-based health center;


(2) expand an existing school-based health center; or


(3) operate a school-based health center.


(f) The commissioner of state health services shall adopt rules establishing standards for health care centers funded through grants that place primary emphasis on delivery of health services and secondary emphasis on population-based models that prevent emerging health threats.


(g) The commissioner of state health services shall require client surveys to be conducted in school-based health centers funded through grants awarded under this section.


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 598 (H.B. 281), Sec. 1, eff. June 19, 2009.


Sec. 38.064. REPORT TO LEGISLATURE. (a) Based on statistics obtained from every school-based health center in this state that receives funding through the Department of State Health Services, the Department of State Health Services shall issue a biennial report to the legislature about the relative efficacy of services delivered by the centers during the preceding two years and any increased academic success of students at campuses served by those centers, with special emphasis on any:


(1) increased attendance, including attendance information regarding students with chronic illnesses;


(2) decreased drop-out rates;


(3) improved student health;


(4) increased student immunization rates;


(5) increased student participation in preventive health measures, including routine physical examinations and checkups conducted in accordance with the Texas Health Steps program; and


(6) improved performance on student assessment instruments administered under Subchapter B, Chapter 39.


(b) The Department of State Health Services may modify any requirement imposed by Subsection (a) if necessary to comply with federal law regarding confidentiality of student medical or educational information, including the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.) and the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).


Added by Acts 1999, 76th Leg., ch. 1418, Sec. 1, eff. June 19, 1999. Renumbered from Education Code Sec. 38.011 and amended by Acts 2001, 77th Leg., ch. 1420, Sec. 4.005, eff. Sept. 1, 2001.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 598 (H.B. 281), Sec. 2, eff. June 19, 2009.


SUBCHAPTER C. PHYSICAL FITNESS ASSESSMENT



Sec. 38.101. ASSESSMENT REQUIRED. (a) Except as provided by Subsection (b), a school district annually shall assess the physical fitness of students enrolled in grade three or higher in a course that satisfies the curriculum requirements for physical education under Section 28.002(a)(2)(C).


(b) A school district is not required to assess a student for whom, as a result of disability or other condition identified by commissioner rule, the assessment instrument adopted under Section 38.102 is inappropriate.


Added by Acts 2007, 80th Leg., R.S., Ch. 1377 (S.B. 530), Sec. 3, eff. June 15, 2007.


Amended by:


Acts 2011, 82nd Leg., 1st C.S., Ch. 8 (S.B. 8), Sec. 17, eff. September 28, 2011.


Sec. 38.102. ADOPTION OF ASSESSMENT INSTRUMENT. (a) The commissioner by rule shall adopt an assessment instrument to be used by a school district in assessing student physical fitness under this subchapter.


(b) The assessment instrument must:


(1) be based on factors related to student health, including the following factors that have been identified as essential to overall health and function:


(A) aerobic capacity;


(B) body composition; and


(C) muscular strength, endurance, and flexibility; and


(2) include criterion-referenced standards specific to a student's age and gender and based on the physical fitness level required for good health.


Added by Acts 2007, 80th Leg., R.S., Ch. 1377 (S.B. 530), Sec. 3, eff. June 15, 2007.


Sec. 38.103. REPORTING OF PHYSICAL FITNESS RESULTS. (a) A school district shall provide the results of individual student performance on the physical fitness assessment required by this subchapter to the agency. The results may not contain the names of individual students or teachers or a student's social security number or date of birth.


(b) The results of individual student performance on the physical fitness assessment instrument are confidential and may be released only in accordance with state and federal law.


Added by Acts 2007, 80th Leg., R.S., Ch. 1377 (S.B. 530), Sec. 3, eff. June 15, 2007.


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 372 (S.B. 226), Sec. 1, eff. June 17, 2011.


Acts 2011, 82nd Leg., R.S., Ch. 372 (S.B. 226), Sec. 2, eff. June 17, 2011.


Sec. 38.104. ANALYSIS OF RESULTS. (a) The agency shall analyze the results received by the agency under this subchapter and identify, for each school district, any correlation between the results and the following:


(1) student academic achievement levels;


(2) student attendance levels;


(3) student obesity;


(4) student disciplinary problems; and


(5) school meal programs.


(b) The agency may contract with a public or private entity for that entity to conduct all or part of the analysis required by Subsection (a).


(c) Not later than September 1 of each year, the agency shall report the findings of the analysis under this section of the results obtained during the preceding school year to the School Health Advisory Committee established under Section 1001.0711, Health and Safety Code, for use by the committee in:


(1) assessing the effectiveness of coordinated health programs provided by school districts in accordance with Section 38.014; and


(2) developing recommendations for modifications to coordinated health program requirements or related curriculum.


Added by Acts 2007, 80th Leg., R.S., Ch. 1377 (S.B. 530), Sec. 3, eff. June 15, 2007.


Sec. 38.105. DONATIONS. The agency and each school district may accept donations made to facilitate implementation of this subchapter.


Added by Acts 2007, 80th Leg., R.S., Ch. 1377 (S.B. 530), Sec. 3, eff. June 15, 2007.


Sec. 38.106. RULES. The commissioner shall adopt rules necessary to implement this subchapter.


Added by Acts 2007, 80th Leg., R.S., Ch. 1377 (S.B. 530), Sec. 3, eff. June 15, 2007.


SUBCHAPTER D. PREVENTION, TREATMENT, AND OVERSIGHT OF CONCUSSIONS AFFECTING STUDENT ATHLETES



Sec. 38.151. DEFINITIONS. In this subchapter:


(1) "Advanced practice nurse" has the meaning assigned by Section 301.152, Occupations Code.


(2) "Athletic trainer" has the meaning assigned by Section 451.001, Occupations Code.


(3) "Coach" includes an assistant coach.


(4) "Concussion" means a complex pathophysiological process affecting the brain caused by a traumatic physical force or impact to the head or body, which may:


(A) include temporary or prolonged altered brain function resulting in physical, cognitive, or emotional symptoms or altered sleep patterns; and


(B) involve loss of consciousness.


(5) "Licensed health care professional" means an advanced practice nurse, athletic trainer, neuropsychologist, or physician assistant, as those terms are defined by this section.


(6) "Neuropsychologist" means a person who:


(A) holds a license to engage in the practice of psychology issued under Section 501.252, Occupations Code; and


(B) specializes in the practice of neuropsychology.


(7) "Open-enrollment charter school" includes a school granted a charter under Subchapter E, Chapter 12.


(8) "Physician" means a person who holds a license to practice medicine in this state.


(9) "Physician assistant" means a person who holds a license issued under Chapter 204, Occupations Code.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Sec. 38.152. APPLICABILITY. This subchapter applies to an interscholastic athletic activity, including practice and competition, sponsored or sanctioned by:


(1) a school district, including a home-rule school district, or a public school, including any school for which a charter has been granted under Chapter 12; or


(2) the University Interscholastic League.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Sec. 38.153. OVERSIGHT OF CONCUSSIONS BY SCHOOL DISTRICTS AND CHARTER SCHOOLS; RETURN-TO-PLAY PROTOCOL DEVELOPMENT BY CONCUSSION OVERSIGHT TEAM. (a) The governing body of each school district and open-enrollment charter school with students enrolled who participate in an interscholastic athletic activity shall appoint or approve a concussion oversight team.


(b) Each concussion oversight team shall establish a return-to-play protocol, based on peer-reviewed scientific evidence, for a student's return to interscholastic athletics practice or competition following the force or impact believed to have caused a concussion.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Sec. 38.154. CONCUSSION OVERSIGHT TEAM: MEMBERSHIP. (a) Each concussion oversight team must include at least one physician and, to the greatest extent practicable, considering factors including the population of the metropolitan statistical area in which the school district or open-enrollment charter school is located, district or charter school student enrollment, and the availability of and access to licensed health care professionals in the district or charter school area, must also include one or more of the following:


(1) an athletic trainer;


(2) an advanced practice nurse;


(3) a neuropsychologist; or


(4) a physician assistant.


(b) If a school district or open-enrollment charter school employs an athletic trainer, the athletic trainer must be a member of the district or charter school concussion oversight team.


(b-1) If a school district or open-enrollment charter school employs a school nurse, the school nurse may be a member of the district or charter school concussion oversight team if requested by the school nurse.


(c) Each member of the concussion oversight team must have had training in the evaluation, treatment, and oversight of concussions at the time of appointment or approval as a member of the team.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 365 (H.B. 961), Sec. 1, eff. June 2, 2019.


Sec. 38.155. REQUIRED ANNUAL FORM ACKNOWLEDGING CONCUSSION INFORMATION. A student may not participate in an interscholastic athletic activity for a school year until both the student and the student's parent or guardian or another person with legal authority to make medical decisions for the student have signed a form for that school year that acknowledges receiving and reading written information that explains concussion prevention, symptoms, treatment, and oversight and that includes guidelines for safely resuming participation in an athletic activity following a concussion. The form must be approved by the University Interscholastic League.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Sec. 38.156. REMOVAL FROM PLAY IN PRACTICE OR COMPETITION FOLLOWING CONCUSSION. A student shall be removed from an interscholastic athletics practice or competition immediately if one of the following persons believes the student might have sustained a concussion during the practice or competition:


(1) a coach;


(2) a physician;


(3) a licensed health care professional;


(4) a person licensed under Chapter 201, Occupations Code;


(5) a school nurse; or


(6) the student's parent or guardian or another person with legal authority to make medical decisions for the student.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 362 (H.B. 3024), Sec. 1, eff. June 1, 2017.


Acts 2019, 86th Leg., R.S., Ch. 365 (H.B. 961), Sec. 2, eff. June 2, 2019.


Sec. 38.157. RETURN TO PLAY IN PRACTICE OR COMPETITION. (a) A student removed from an interscholastic athletics practice or competition under Section 38.156 may not be permitted to practice or compete again following the force or impact believed to have caused the concussion until:


(1) the student has been evaluated, using established medical protocols based on peer-reviewed scientific evidence, by a treating physician chosen by the student or the student's parent or guardian or another person with legal authority to make medical decisions for the student;


(2) the student has successfully completed each requirement of the return-to-play protocol established under Section 38.153 necessary for the student to return to play;


(3) the treating physician has provided a written statement indicating that, in the physician's professional judgment, it is safe for the student to return to play; and


(4) the student and the student's parent or guardian or another person with legal authority to make medical decisions for the student:


(A) have acknowledged that the student has completed the requirements of the return-to-play protocol necessary for the student to return to play;


(B) have provided the treating physician's written statement under Subdivision (3) to the person responsible for compliance with the return-to-play protocol under Subsection (c) and the person who has supervisory responsibilities under Subsection (c); and


(C) have signed a consent form indicating that the person signing:


(i) has been informed concerning and consents to the student participating in returning to play in accordance with the return-to-play protocol;


(ii) understands the risks associated with the student returning to play and will comply with any ongoing requirements in the return-to-play protocol;


(iii) consents to the disclosure to appropriate persons, consistent with the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191), of the treating physician's written statement under Subdivision (3) and, if any, the return-to-play recommendations of the treating physician; and


(iv) understands the immunity provisions under Section 38.159.


(b) A coach of an interscholastic athletics team may not authorize a student's return to play.


(c) The school district superintendent or the superintendent's designee or, in the case of a home-rule school district or open-enrollment charter school, the person who serves the function of superintendent or that person's designee shall supervise an athletic trainer or other person responsible for compliance with the return-to-play protocol. The person who has supervisory responsibilities under this subsection may not be a coach of an interscholastic athletics team.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Sec. 38.158. TRAINING COURSES. (a) The University Interscholastic League shall approve for coaches of interscholastic athletic activities training courses that provide for not less than two hours of training in the subject matter of concussions, including evaluation, prevention, symptoms, risks, and long-term effects. The league shall maintain an updated list of individuals and organizations authorized by the league to provide the training.


(b) The Texas Department of Licensing and Regulation shall approve for athletic trainers training courses in the subject matter of concussions and shall maintain an updated list of individuals and organizations authorized by the board to provide the training.


(c) The following persons must take a training course in accordance with Subsection (e) from an authorized training provider at least once every two years:


(1) a coach of an interscholastic athletic activity;


(2) a school nurse who serves as a member of a concussion oversight team;


(3) a licensed health care professional who serves as a member of a concussion oversight team and is an employee, representative, or agent of a school district or open-enrollment charter school; and


(4) a licensed health care professional who serves on a volunteer basis as a member of a concussion oversight team for a school district or open-enrollment charter school.


(d) A physician who serves as a member of a concussion oversight team shall, to the greatest extent practicable, periodically take an appropriate continuing medical education course in the subject matter of concussions.


(e) For purposes of Subsection (c):


(1) a coach must take a course described by Subsection (a);


(2) an athletic trainer must take:


(A) a course described by Subsection (b); or


(B) a course concerning the subject matter of concussions that has been approved for continuing education credit by the appropriate licensing authority for the profession; and


(3) a school nurse or licensed health care professional, other than an athletic trainer, must take:


(A) a course described by Subsection (a) or (b); or


(B) a course concerning the subject matter of concussions that has been approved for continuing education credit by the appropriate licensing authority for the profession.


(f) Each person described by Subsection (c) must submit proof of timely completion of an approved course in compliance with Subsection (e) to the school district superintendent or the superintendent's designee or, in the case of a home-rule school district or open-enrollment charter school, a person who serves the function of a superintendent or that person's designee.


(g) A school nurse or licensed health care professional who is not in compliance with the training requirements under this section may not serve on a concussion oversight team in any capacity.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 6.003, eff. September 1, 2017.


Acts 2019, 86th Leg., R.S., Ch. 365 (H.B. 961), Sec. 3, eff. June 2, 2019.


Sec. 38.159. IMMUNITY. This subchapter does not:


(1) waive any immunity from liability of a school district or open-enrollment charter school or of district or charter school officers or employees;


(2) create any liability for a cause of action against a school district or open-enrollment charter school or against district or charter school officers or employees;


(3) waive any immunity from liability under Section 74.151, Civil Practice and Remedies Code; or


(4) create any cause of action or liability for a member of a concussion oversight team arising from the injury or death of a student participating in an interscholastic athletics practice or competition, based on service or participation on the concussion oversight team.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


Sec. 38.160. RULES. The commissioner may adopt rules as necessary to administer this subchapter.


Added by Acts 2011, 82nd Leg., R.S., Ch. 781 (H.B. 2038), Sec. 2, eff. June 17, 2011.


SUBCHAPTER E. MAINTENANCE AND ADMINISTRATION OF EPINEPHRINE AUTO-INJECTORS AND ASTHMA MEDICINE



Sec. 38.201. DEFINITIONS. In this subchapter:


(1) "Advisory committee" means the committee established under Section 38.202.


(2) "Anaphylaxis" means a sudden, severe, and potentially life-threatening allergic reaction that occurs when a person is exposed to an allergen.


(3) "Epinephrine auto-injector" means a disposable medical drug delivery device that contains a premeasured single dose of epinephrine that is intended to be used to treat anaphylaxis.


(4) "Physician" means a person who holds a license to practice medicine in this state.


(5) "Private school" means a school that:


(A) offers a course of instruction for students in one or more grades from prekindergarten through grade 12;


(B) is not operated by a governmental entity; and


(C) is not a school whose students meet the definition provided by Section 29.916(a)(1).


(6) "School personnel" means an employee of a school district, open-enrollment charter school, or private school. The term includes a member of the board of trustees of a school district or the governing body of an open-enrollment charter school or private school.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 1, eff. May 22, 2017.


Sec. 38.202. ADVISORY COMMITTEE: ESTABLISHMENT AND COMPOSITION. (a) The commissioner of state health services shall establish an advisory committee to examine and review the administration of epinephrine auto-injectors to a person experiencing an anaphylactic reaction on a campus of a school district, an open-enrollment charter school, a private school, or an institution of higher education.


(b) The advisory committee shall be composed of members appointed by the commissioner of state health services. In making appointments, the commissioner shall ensure that:


(1) a majority of the members are physicians with expertise in treating anaphylaxis, including physicians who specialize in the fields of pediatrics, allergies, asthma, and immunology;


(2) at least one member is a registered nurse employed by a school district, open-enrollment charter school, or private school as a school nurse;


(3) at least one member is an employee of a general academic teaching institution; and


(4) at least one member is an employee of a public junior college or a public technical institute.


(c) A member of the advisory committee serves at the pleasure of the commissioner of state health services.


(d) A vacancy on the advisory committee is filled by the commissioner of state health services in the same manner as other appointments to the advisory committee.


(e) In this section, "general academic teaching institution," "institution of higher education," "public junior college," and "public technical institute" have the meanings assigned by Section 61.003.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 2, eff. May 22, 2017.


Acts 2017, 85th Leg., R.S., Ch. 206 (S.B. 1367), Sec. 1, eff. September 1, 2017.


Sec. 38.203. ADVISORY COMMITTEE: PRESIDING OFFICER. The advisory committee shall elect a presiding officer.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Sec. 38.204. ADVISORY COMMITTEE: COMPENSATION AND EXPENSES. Members of the advisory committee serve without compensation but are entitled to reimbursement for travel expenses.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Sec. 38.205. ADVISORY COMMITTEE: APPLICABILITY OF OTHER LAW. Chapter 2110, Government Code, does not apply to the advisory committee.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Sec. 38.206. ADVISORY COMMITTEE: OPEN MEETINGS. Meetings of the advisory committee are subject to Chapter 551, Government Code.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Sec. 38.207. ADVISORY COMMITTEE: DUTIES. The advisory committee shall advise the commissioner of state health services on:


(1) the storage and maintenance of epinephrine auto-injectors on school campuses and campuses of institutions of higher education;


(2) the training of school personnel and school volunteers, and of personnel and volunteers at institutions of higher education, in the administration of an epinephrine auto-injector; and


(3) a plan for:


(A) one or more school personnel members or school volunteers trained in the administration of an epinephrine auto-injector to be on each school campus; and


(B) one or more personnel members or volunteers of an institution of higher education trained in the administration of an epinephrine auto-injector to be on each campus of an institution of higher education.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 206 (S.B. 1367), Sec. 2, eff. September 1, 2017.


Sec. 38.208. MAINTENANCE AND ADMINISTRATION OF EPINEPHRINE AUTO-INJECTORS AND ASTHMA MEDICINE. (a) Each school district, open-enrollment charter school, and private school may adopt and implement a policy regarding the maintenance, administration, and disposal of epinephrine auto-injectors at each campus in the district or school.


(a-1) Each school district, open-enrollment charter school, and private school may adopt and implement a policy authorizing a school nurse to maintain and administer asthma medicine at each campus in the district or school.


(b) If a policy is adopted under Subsection (a), the policy:


(1) must provide that school personnel and school volunteers who are authorized and trained may administer an epinephrine auto-injector to a person who is reasonably believed to be experiencing anaphylaxis on a school campus; and


(2) may provide that school personnel and school volunteers who are authorized and trained may administer an epinephrine auto-injector to a person who is reasonably believed to be experiencing anaphylaxis at an off-campus school event or while in transit to or from a school event.


(b-1) If a policy is adopted under Subsection (a-1), the policy must provide that the school nurse may administer prescription asthma medicine to a student only if the school nurse has written notification from a parent or guardian of the student that the student has been diagnosed as having asthma and stating that the school nurse may administer prescription asthma medicine to the student. A school nurse may administer the prescription asthma medicine only at a school campus.


(c) The executive commissioner of the Health and Human Services Commission, in consultation with the commissioner of education, and with advice from the advisory committee as appropriate, shall adopt rules regarding the maintenance, administration, and disposal of an epinephrine auto-injector at a school campus subject to a policy adopted under Subsection (a) and the maintenance and administration of asthma medicine at a school campus subject to a policy adopted under Subsection (a-1). The rules must establish:


(1) the number of epinephrine auto-injectors available at each campus;


(2) the amount of prescription asthma medicine available at each campus;


(3) the process for each school district, open-enrollment charter school, and private school to check the inventory of epinephrine auto-injectors and asthma medicine at regular intervals for expiration and replacement; and


(4) the amount of training required for school personnel and school volunteers to administer an epinephrine auto-injector.


(d) Each school district, open-enrollment charter school, and private school that adopts a policy under Subsection (a) must require that each campus have one or more school personnel members or school volunteers authorized and trained to administer an epinephrine auto-injector present during all hours the campus is open.


(e) The supply of epinephrine auto-injectors at each campus must be stored in a secure location and be easily accessible to school personnel and school volunteers authorized and trained to administer an epinephrine auto-injector. The supply of asthma medicine at each campus must be stored in a secure location and be easily accessible to the school nurse.


(f) The policy described by Subsection (a-1) may not require a school district, open-enrollment charter school, or private school to purchase prescription asthma medicine or require any other expenditure related to the maintenance or administration of asthma medicine that would result in a negative fiscal impact on the district or school.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 3, eff. May 22, 2017.


Acts 2019, 86th Leg., R.S., Ch. 192 (H.B. 2243), Sec. 2, eff. May 24, 2019.


Acts 2019, 86th Leg., R.S., Ch. 192 (H.B. 2243), Sec. 3, eff. May 24, 2019.


Sec. 38.209. REPORT ON ADMINISTERING EPINEPHRINE AUTO-INJECTOR. (a) Not later than the 10th business day after the date a school personnel member or school volunteer administers an epinephrine auto-injector in accordance with a policy adopted under Section 38.208(a), the school shall report the information required under Subsection (b) to:


(1) the school district, the charter holder if the school is an open-enrollment charter school, or the governing body of the school if the school is a private school;


(2) the physician or other person who prescribed the epinephrine auto-injector; and


(3) the commissioner of state health services.


(b) The report required under this section must include the following information:


(1) the age of the person who received the administration of the epinephrine auto-injector;


(2) whether the person who received the administration of the epinephrine auto-injector was a student, a school personnel member or school volunteer, or a visitor;


(3) the physical location where the epinephrine auto-injector was administered;


(4) the number of doses of epinephrine auto-injector administered;


(5) the title of the person who administered the epinephrine auto-injector; and


(6) any other information required by the commissioner of education.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 4, eff. May 22, 2017.


Acts 2019, 86th Leg., R.S., Ch. 597 (S.B. 668), Sec. 1.10, eff. June 10, 2019.


Sec. 38.210. TRAINING. (a) Each school district, open-enrollment charter school, and private school that adopts a policy under Section 38.208(a) is responsible for training school personnel and school volunteers in the administration of an epinephrine auto-injector.


(b) Training required under this section must:


(1) include information on:


(A) recognizing the signs and symptoms of anaphylaxis;


(B) administering an epinephrine auto-injector;


(C) implementing emergency procedures, if necessary, after administering an epinephrine auto-injector; and


(D) properly disposing of used or expired epinephrine auto-injectors; and


(2) be provided in a formal training session or through online education and be completed annually.


(c) Each school district, open-enrollment charter school, and private school shall maintain records on the training required under this section.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 5, eff. May 22, 2017.


Sec. 38.211. PRESCRIPTION OF EPINEPHRINE AUTO-INJECTORS AND ASTHMA MEDICINE. (a) A physician or person who has been delegated prescriptive authority under Chapter 157, Occupations Code, may prescribe epinephrine auto-injectors or asthma medicine in the name of a school district, open-enrollment charter school, or private school.


(b) A physician or other person who prescribes epinephrine auto-injectors or asthma medicine under Subsection (a) shall provide the school district, open-enrollment charter school, or private school with a standing order for the administration of, as applicable:


(1) an epinephrine auto-injector to a person reasonably believed to be experiencing anaphylaxis; or


(2) asthma medicine to a person reasonably believed to be experiencing a symptom of asthma and who has provided written notification and permission as required by Section 38.208(b-1).


(c) The standing order under Subsection (b) is not required to be patient-specific, and the epinephrine auto-injector or asthma medicine may be administered to a person without a previously established physician-patient relationship.


(d) Notwithstanding any other provisions of law, supervision or delegation by a physician is considered adequate if the physician:


(1) periodically reviews the order; and


(2) is available through direct telecommunication as needed for consultation, assistance, and direction.


(e) An order issued under this section must contain:


(1) the name and signature of the prescribing physician or other person;


(2) the name of the school district, open-enrollment charter school, or private school to which the order is issued;


(3) the quantity of epinephrine auto-injectors or asthma medicine to be obtained and maintained under the order; and


(4) the date of issue.


(f) A pharmacist may dispense an epinephrine auto-injector or asthma medicine to a school district, open-enrollment charter school, or private school without requiring the name or any other identifying information relating to the user.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 6, eff. May 22, 2017.


Acts 2019, 86th Leg., R.S., Ch. 192 (H.B. 2243), Sec. 4, eff. May 24, 2019.


Acts 2019, 86th Leg., R.S., Ch. 192 (H.B. 2243), Sec. 5, eff. May 24, 2019.


Sec. 38.212. NOTICE TO PARENTS. If a school district, open-enrollment charter school, or private school implements a policy under this subchapter, the district or school shall provide written notice to a parent or guardian of each student enrolled in the district or school. Notice required under this section must be provided before a policy is implemented by the district or school and before the start of each school year.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 7, eff. May 22, 2017.


Acts 2019, 86th Leg., R.S., Ch. 192 (H.B. 2243), Sec. 6, eff. May 24, 2019.


Sec. 38.213. GIFTS, GRANTS, AND DONATIONS. A school district, open-enrollment charter school, or private school may accept gifts, grants, donations, and federal and local funds to implement this subchapter.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 8, eff. May 22, 2017.


Sec. 38.214. RULES. Except as otherwise provided by this subchapter, the commissioner of education and the executive commissioner of the Health and Human Services Commission shall jointly adopt rules necessary to implement this subchapter.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 9, eff. May 22, 2017.


Sec. 38.215. IMMUNITY FROM LIABILITY. (a) A person who in good faith takes, or fails to take, any action under this subchapter is immune from civil or criminal liability or disciplinary action resulting from that action or failure to act, including:


(1) issuing an order for epinephrine auto-injectors or asthma medicine;


(2) supervising or delegating the administration of an epinephrine auto-injector or asthma medicine;


(3) possessing, maintaining, storing, or disposing of an epinephrine auto-injector or asthma medicine;


(4) prescribing an epinephrine auto-injector or asthma medicine;


(5) dispensing:


(A) an epinephrine auto-injector; or


(B) asthma medicine, provided that permission has been granted as provided by Section 38.208(b-1);


(6) administering, or assisting in administering, an epinephrine auto-injector or asthma medicine, provided that permission has been granted as provided by Section 38.208(b-1);


(7) providing, or assisting in providing, training, consultation, or advice in the development, adoption, or implementation of policies, guidelines, rules, or plans; or


(8) undertaking any other act permitted or required under this subchapter.


(b) The immunities and protections provided by this subchapter are in addition to other immunities or limitations of liability provided by law.


(c) Notwithstanding any other law, this subchapter does not create a civil, criminal, or administrative cause of action or liability or create a standard of care, obligation, or duty that provides a basis for a cause of action for an act or omission under this subchapter.


(d) A cause of action does not arise from an act or omission described by this section.


(e) A school district, open-enrollment charter school, or private school and school personnel and school volunteers are immune from suit resulting from an act, or failure to act, under this subchapter, including an act or failure to act under related policies and procedures.


(f) An act or failure to act by school personnel or a school volunteer under this subchapter, including an act or failure to act under related policies and procedures, is the exercise of judgment or discretion on the part of the school personnel or school volunteer and is not considered to be a ministerial act for purposes of liability of the school district or open-enrollment charter school.


Added by Acts 2015, 84th Leg., R.S., Ch. 180 (S.B. 66), Sec. 2, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 61 (S.B. 579), Sec. 10, eff. May 22, 2017.


Acts 2019, 86th Leg., R.S., Ch. 192 (H.B. 2243), Sec. 7, eff. May 24, 2019.


This Subchapter F, consisting of Secs. 38.251 to 38.256, was added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19.



See also another Subchapter F, consisting of Secs. 38.301 to 38.312, as added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1.



SUBCHAPTER F. MENTAL HEALTH RESOURCES



Sec. 38.251. RUBRIC TO IDENTIFY RESOURCES. (a) The agency shall develop a rubric for use by regional education service centers in identifying resources related to student mental health that are available to schools in their respective regions. The agency shall develop the rubric in conjunction with:


(1) the Health and Human Services Commission;


(2) the Department of Family and Protective Services;


(3) the Texas Juvenile Justice Department;


(4) the Texas Higher Education Coordinating Board;


(5) the Texas Child Mental Health Care Consortium;


(6) the Texas Workforce Commission; and


(7) any other state agency the agency considers appropriate.


(b) The rubric developed by the agency must provide for the identification of resources relating to:


(1) training and technical assistance on practices that support the mental health of students;


(2) school-based programs that provide prevention or intervention services to students;


(3) community-based programs that provide school-based or school-connected prevention or intervention services to students;


(4) Communities In Schools programs described by Subchapter E, Chapter 33;


(5) school-based mental health providers; and


(6) public and private funding sources available to address the mental health of students.


(c) Not later than December 1 of each odd-numbered year, the agency shall revise the rubric as necessary to reflect changes in resources that may be available to schools and provide the rubric to each regional education service center.


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19, eff. June 6, 2019.


Sec. 38.252. REGIONAL INVENTORY OF MENTAL HEALTH RESOURCES. (a) Each regional education service center shall use the rubric developed under Section 38.251 to identify resources related to student mental health available to schools in the center's region, including evidence-based and promising programs and best practices, that:


(1) create school environments that support the social, emotional, and academic development of students;


(2) identify students who may need additional behavioral or mental health support before issues arise;


(3) provide early, effective interventions to students in need of additional support;


(4) connect students and their families to specialized services in the school or community when needed; and


(5) assist schools in aligning resources necessary to address the mental health of students.


(b) A regional education service center may consult with any entity the center considers necessary in identifying resources under Subsection (a), including:


(1) school districts;


(2) local mental health authorities;


(3) community mental health services providers;


(4) education groups;


(5) hospitals; and


(6) institutions of higher education.


(c) Not later than March 1 of each even-numbered year, each regional education service center shall:


(1) use the revised rubric received from the agency under Section 38.251 to identify, in the manner provided by this section, any additional resources that may be available to schools in the center's region; and


(2) submit to the agency a report on resources identified through the process, including any additional resources identified under Subdivision (1).


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19, eff. June 6, 2019.


Sec. 38.253. STATEWIDE INVENTORY OF MENTAL HEALTH RESOURCES. (a) The agency shall develop a list of statewide resources available to school districts to address the mental health of students, including:


(1) training and technical assistance on practices that support the mental health of students;


(2) school-based programs that provide prevention or intervention services to students;


(3) community-based programs that provide school-based or school-connected prevention or intervention services to students;


(4) school-based mental health providers; and


(5) public and private funding sources available to address the mental health of students.


(b) In developing the list required under Subsection (a), the agency shall collaborate with:


(1) the Health and Human Services Commission;


(2) the Department of Family and Protective Services;


(3) the Texas Juvenile Justice Department;


(4) the Texas Higher Education Coordinating Board;


(5) the Texas Child Mental Health Care Consortium;


(6) the Texas Workforce Commission;


(7) one or more representatives of Communities In Schools programs described by Subchapter E, Chapter 33, who are designated by the Communities In Schools State Office;


(8) hospitals or other health care providers;


(9) community service providers;


(10) parent, educator, and advocacy groups; and


(11) any entity the agency determines can assist the agency in compiling the list.


(c) The agency shall include on the list any resource available through an entity identified as a resource under Subsection (b), including an entity described by Subsection (b), that provides evidence-based and promising programs and best practices that:


(1) create school environments that support the social, emotional, and academic development of students;


(2) identify students who may need additional behavioral or mental health support before issues arise;


(3) provide early, effective interventions to students in need of additional support; and


(4) connect students and their families to specialized services in the school or community when needed.


(d) The agency shall revise the list not later than March 1 of each even-numbered year.


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19, eff. June 6, 2019.


Sec. 38.254. STATEWIDE PLAN FOR STUDENT MENTAL HEALTH. (a) The agency shall develop a statewide plan to ensure all students have access to adequate mental health resources. The agency shall include in the plan:


(1) a description of any revisions made to the rubric required by Section 38.251;


(2) the results of the most recent regional inventory of mental health resources required by Section 38.252, including any additional resources identified;


(3) the results of the most recent statewide inventory of mental health resources required by Section 38.253, including any additional resources identified;


(4) the agency's goals for student mental health access to be applied across the state, including goals relating to:


(A) methods to objectively measure positive school climate;


(B) increasing the availability of early, effective school-based or school-connected mental health interventions and resources for students in need of additional support; and


(C) increasing the availability of referrals for students and families to specialized services for students in need of additional support outside the school;


(5) a list of actions the commissioner may take without legislative action to help all districts reach the agency's goals described by the plan; and


(6) recommendations to the legislature on methods to ensure that all districts can meet the agency's goals described in the plan through legislative appropriations or other action by the legislature.


(b) In developing the agency's goals under Subsection (a)(4), the agency shall consult with any person the agency believes is necessary to the development of the goals, including:


(1) educators;


(2) mental health practitioners;


(3) advocacy groups; and


(4) parents.


(c) The agency shall revise the plan not later than April 1 of each even-numbered year.


(d) As soon as practicable after completing or revising the plan, the agency shall:


(1) submit an electronic copy of the plan to the legislature;


(2) post the plan on the agency's Internet website; and


(3) hold public meetings in each regional education service center's region to present the statewide plan and shall provide an opportunity for public comment at each meeting.


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19, eff. June 6, 2019.


Sec. 38.255. AGENCY USE OF STATEWIDE PLAN. (a) The agency shall use the statewide plan for student mental health required by Section 38.254 to develop and revise the agency's long-term strategic plan.


(b) The agency shall use the recommendations to the legislature required by Section 38.254(a)(6) to develop each agency legislative appropriations request.


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19, eff. June 6, 2019.


Sec. 38.256. REPORTS TO LEGISLATURE. In addition to any other information required to be provided to the legislature under this chapter, not later than November 1 of each even-numbered year the agency shall provide to the legislature:


(1) a description of any changes the agency has made to the rubric required by Section 38.251; and


(2) an analysis of each region's progress toward meeting the agency's goals developed under Section 38.254.


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19, eff. June 6, 2019.


This Subchapter F, consisting of Secs. 38.301 to 38.312, was added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1.



See also another Subchapter F, consisting of Secs. 38.251 to 38.256, as added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 19.



For expiration of this subchapter, see Section 38.312.



SUBCHAPTER F. COLLABORATIVE TASK FORCE ON PUBLIC SCHOOL MENTAL HEALTH SERVICES



Sec. 38.301. DEFINITIONS. In this subchapter:


(1) "Institution of higher education" has the meaning assigned by Section 61.003.


(2) "Task force" means the Collaborative Task Force on Public School Mental Health Services.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.302. ESTABLISHMENT. The Collaborative Task Force on Public School Mental Health Services is established to study and evaluate:


(1) mental health services that are funded by this state and provided at a school district or open-enrollment charter school directly to:


(A) a student enrolled in the district or school;


(B) a parent or family member of or person standing in parental relation to a student enrolled in the district or school; or


(C) an employee of the district or school;


(2) training provided to an educator employed by the district or school to provide the mental health services described by Subdivision (1); and


(3) the impact the mental health services described by Subdivision (1) have on:


(A) the number of violent incidents that occur at school districts or open-enrollment charter schools;


(B) the suicide rate of the individuals who are provided the mental health services described by Subdivision (1);


(C) the number of public school students referred to the Department of Family and Protective Services for investigation services and the reasons for those referrals;


(D) the number of individuals who are transported from each school district or open-enrollment charter school for an emergency detention under Chapter 573, Health and Safety Code; and


(E) the number of public school students referred to outside counselors in accordance with Section 38.010.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.303. MEMBERSHIP. (a) The task force is composed of:


(1) the commissioner or the commissioner's designee;


(2) the following additional members appointed by the commissioner:


(A) three parents of students who are enrolled in school districts or open-enrollment charter schools and receive the mental health services described by Section 38.302(1);


(B) one person who provides the mental health services described by Section 38.302(1) or the training described by Section 38.302(2) and who is:


(i) a licensed professional counselor, as defined by Section 503.002, Occupations Code;


(ii) a licensed clinical social worker, as defined by Section 505.002, Occupations Code; or


(iii) a school counselor certified under Subchapter B, Chapter 21;


(C) one person who is a psychiatrist;


(D) two persons who are administrators of districts or schools that provide the mental health services described by Section 38.302(1) or the training described by Section 38.302(2);


(E) one person who is a member of a foundation that invests in the mental health services described by Section 38.302(1) or the training described by Section 38.302(2);


(F) one person who is an employee of an institution of higher education designated under Section 38.307; and


(G) one person who is a licensed specialist in school psychology, as defined by Section 501.002, Occupations Code; and


(3) for any other entity the task force considers necessary, one person appointed by the task force for each such entity.


(b) Appointments to the task force shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.


(c) Chapter 2110, Government Code, does not apply to the task force.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.304. OFFICERS. (a) The commissioner is designated as the interim presiding officer for purposes of calling and conducting the initial meeting of the task force.


(b) The task force:


(1) shall at its initial meeting select a presiding officer from among its members for the purpose of calling and conducting meetings; and


(2) may select an assistant presiding officer and a secretary from among its members.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.305. COMPENSATION; REIMBURSEMENT. A member of the task force may not receive compensation or reimbursement for service on the task force.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.306. MEETINGS. (a) After its initial meeting, the task force shall meet at least twice each year at a time and place determined by the presiding officer.


(b) The task force may meet at other times the task force considers appropriate. The presiding officer may call a meeting on the officer's own motion.


(c) The task force may meet by teleconference.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.307. SUPPORT SERVICES FOR TASK FORCE. (a) The commissioner shall designate one institution of higher education with experience in evaluating mental health services to serve as the lead institution for the task force. The institution designated under this subsection shall provide faculty, staff, and administrative support services to the task force as determined necessary by the task force to administer this subchapter.


(b) The commissioner shall designate two institutions of higher education with experience in evaluating mental health services to assist the task force and the lead institution designated under Subsection (a) as determined necessary by the task force to administer this subchapter.


(c) In making a designation under this section, the commissioner shall give preference to at least one predominantly black institution, as defined by 20 U.S.C. Section 1067q(c)(9).


(d) On request of the task force, the agency, a school district, or an open-enrollment charter school shall provide information or other assistance to the task force.


(e) The agency shall maintain the data collected by the task force and the work product of the task force in accordance with:


(1) the agency's information security plan under Section 2054.133, Government Code; and


(2) the agency's records retention schedule under Section 441.185, Government Code.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.308. DUTIES OF TASK FORCE. The task force shall:


(1) gather data on:


(A) the number of students enrolled in each school district and open-enrollment charter school;


(B) the number of individuals to whom each school district or open-enrollment charter school provides the mental health services described by Section 38.302(1);


(C) the number of individuals for whom each school district or open-enrollment charter school has the resources to provide the mental health services described by Section 38.302(1);


(D) the number of individuals described by Paragraph (B) who are referred to an inpatient or outpatient mental health provider;


(E) the number of individuals who are transported from each school district or open-enrollment charter school for an emergency detention under Chapter 573, Health and Safety Code; and


(F) the race, ethnicity, gender, special education status, educationally disadvantaged status, and geographic location of:


(i) individuals who are provided the mental health services described by Section 38.302(1);


(ii) individuals who are described by Paragraph (D); and


(iii) individuals who are described by Paragraph (E); and


(2) study, evaluate, and make recommendations regarding the mental health services described by Section 38.302(1), the training described by Section 38.302(2), and the impact of those mental health services, as described by Section 38.302(3), including addressing:


(A) the outcomes and the effectiveness of the services and training provided, including the outcomes and effectiveness of the service and training providers and the programs under which services and training are provided, in:


(i) improving student academic achievement and attendance;


(ii) reducing student disciplinary proceedings, suspensions, placements in a disciplinary alternative education program, and expulsions; and


(iii) delivering prevention and intervention services to promote early mental health skills, including:


(a) building skills relating to managing emotions, establishing and maintaining positive relationships, and making responsible decisions;


(b) preventing substance abuse;


(c) preventing suicides;


(d) adhering to the purpose of the relevant program services or training;


(e) promoting trauma-informed practices;


(f) promoting a positive school climate, as defined by Section 161.325(a-3), Health and Safety Code, in the district or school; and


(g) improving physical and emotional safety and well-being in the district or school and reducing violence in the district or school;


(B) best practices for districts and schools in implementing the services or training;


(C) disparities in the race, ethnicity, gender, special education status, and geographic location of individuals receiving the services; and


(D) best practices to replicate the services or training for all districts and schools.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.309. PRIVACY OF INFORMATION. The task force shall ensure that data gathered, information studied, and evaluations conducted under this subchapter:


(1) comply with federal law regarding confidentiality of student medical or educational information, including the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.) and the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g), and any state law relating to the privacy of student information; and


(2) may not be shared with a federal agency or state agency, including an institution of higher education, except as otherwise provided by this subchapter or other law.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.310. REPORTS. Not later than November 1 of each even-numbered year, the task force shall submit to the governor, the lieutenant governor, the speaker of the house of representatives, and the agency a report of the results of the task force's activities conducted under Section 38.308 and any recommendations for legislative or other action.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.311. FUNDING; ADMINISTRATIVE COST RESTRICTION; GIFTS AND GRANTS. (a) Of state funds allocated to the agency for public school mental health services, the commissioner may provide not more than 10 percent for purposes of the task force established under this subchapter.


(b) The task force may not spend for the administration of the task force more than 10 percent of any money allocated to the task force for the purposes of this subchapter.


(c) The task force may accept a gift or grant from a person other than the federal government.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


Sec. 38.312. EXPIRATION. The task force is abolished and this subchapter expires December 1, 2025.


Added by Acts 2019, 86th Leg., R.S., Ch. 1278 (H.B. 906), Sec. 1, eff. June 14, 2019.


SUBCHAPTER G. MENTAL HEALTH, SUBSTANCE ABUSE, AND YOUTH SUICIDE



Sec. 38.351. MENTAL HEALTH PROMOTION AND INTERVENTION, SUBSTANCE ABUSE PREVENTION AND INTERVENTION, AND SUICIDE PREVENTION. (a) The agency, in coordination with the Health and Human Services Commission and regional education service centers, shall provide and annually update a list of recommended best practice-based programs and research-based practices in the areas specified under Subsection (c) for implementation in public elementary, junior high, middle, and high schools within the general education setting.


(b) Each school district may select from the list provided under Subsection (a) a program or programs appropriate for implementation in the district.


(c) The list provided under Subsection (a) must include programs and practices in the following areas:


(1) early mental health prevention and intervention;


(2) building skills related to managing emotions, establishing and maintaining positive relationships, and responsible decision-making;


(3) substance abuse prevention and intervention;


(4) suicide prevention, intervention, and postvention;


(5) grief-informed and trauma-informed practices;


(6) positive school climates;


(7) positive behavior interventions and supports;


(8) positive youth development; and


(9) safe, supportive, and positive school climate.


(d) For purposes of Subsection (c), "school climate" means the quality and character of school life, including interpersonal relationships, teaching and learning practices, and organizational structures, as experienced by students enrolled in the school district, parents of those students, and personnel employed by the district.


(e) The suicide prevention programs on the list provided under Subsection (a) must include components that provide for training school counselors, teachers, nurses, administrators, and other staff, as well as law enforcement officers and social workers who regularly interact with students, to:


(1) recognize students at risk of attempting suicide, including students who are or may be the victims of or who engage in bullying;


(2) recognize students displaying early warning signs and a possible need for early mental health or substance abuse intervention, which warning signs may include declining academic performance, depression, anxiety, isolation, unexplained changes in sleep or eating habits, and destructive behavior toward self and others;


(3) intervene effectively with students described by Subdivision (1) or (2) by providing notice and referral to a parent or guardian so appropriate action, such as seeking mental health or substance abuse services, may be taken by a parent or guardian; and


(4) assist students in returning to school following treatment of a mental health concern or suicide attempt.


(f) In developing the list of best practice-based programs and research-based practices, the agency and the Health and Human Services Commission shall consider:


(1) any existing suicide prevention method developed by a school district; and


(2) any Internet or online course or program developed in this state or another state that is based on best practices recognized by the Substance Abuse and Mental Health Services Administration or the Suicide Prevention Resource Center.


(g) Except as otherwise provided by this subsection, each school district shall provide training described in the components set forth under Subsection (e) for teachers, school counselors, principals, and all other appropriate personnel. A school district is required to provide the training at an elementary school campus only to the extent that sufficient funding and programs are available. A school district may implement a program on the list to satisfy the requirements of this subsection.


(h) If a school district provides the training under Subsection (g):


(1) a school district employee described under that subsection must participate in the training at least one time; and


(2) the school district shall maintain records that include the name of each district employee who participated in the training.


(i) A school district shall develop practices and procedures concerning each area listed in Subsection (c), including mental health promotion and intervention, substance abuse prevention and intervention, and suicide prevention, that:


(1) include a procedure for providing notice of a recommendation for early mental health or substance abuse intervention regarding a student to a parent or guardian of the student within a reasonable amount of time after the identification of early warning signs as described by Subsection (e)(2);


(2) include a procedure for providing notice of a student identified as at risk of attempting suicide to a parent or guardian of the student within a reasonable amount of time after the identification of early warning signs as described by Subsection (e)(2);


(3) establish that the district may develop a reporting mechanism and may designate at least one person to act as a liaison officer in the district for the purposes of identifying students in need of early mental health or substance abuse intervention or suicide prevention;


(4) set out available counseling alternatives for a parent or guardian to consider when their child is identified as possibly being in need of early mental health or substance abuse intervention or suicide prevention; and


(5) include procedures:


(A) to support the return of a student to school following hospitalization or residential treatment for a mental health condition or substance abuse; and


(B) for suicide prevention, intervention, and postvention.


(j) The practices and procedures developed under Subsection (i):


(1) may address multiple areas listed in Subsection (c) together; and


(2) must prohibit the use without the prior consent of a student's parent or guardian of a medical screening of the student as part of the process of identifying whether the student is possibly in need of early mental health or substance abuse intervention or suicide prevention.


(k) The practices and procedures developed under Subsection (i) must be included in:


(1) the annual student handbook; and


(2) the district improvement plan under Section 11.252.


(l) The agency shall develop and make available to school districts guiding principles on the coordination of programs and practices in areas listed under Subsection (c).


(m) The agency, the Health and Human Services Commission, and each regional education service center:


(1) may accept donations for purposes of this section from sources without a conflict of interest; and


(2) may not accept donations for purposes of this section from an anonymous source.


(n) Nothing in this section is intended to interfere with the rights of parents or guardians and the decision-making regarding the best interest of the child. Practices and procedures developed in accordance with this section are intended to notify a parent or guardian of a need for mental health or substance abuse intervention so that a parent or guardian may take appropriate action. Nothing in this section shall be construed as giving school districts the authority to prescribe medications. Any and all medical decisions are to be made by a parent or guardian of a student.


(o) In this section, "postvention" includes activities that promote healing necessary to reduce the risk of suicide by a person affected by the suicide of another.


Added by Acts 2011, 82nd Leg., R.S., Ch. 1134 (H.B. 1386), Sec. 3, eff. June 17, 2011.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 578 (S.B. 831), Sec. 2, eff. September 1, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 578 (S.B. 831), Sec. 3, eff. September 1, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 1321 (S.B. 460), Sec. 4, eff. September 1, 2013.


Acts 2017, 85th Leg., R.S., Ch. 522 (S.B. 179), Sec. 12, eff. September 1, 2017.


Acts 2017, 85th Leg., R.S., Ch. 714 (H.B. 4056), Sec. 1, eff. June 12, 2017.


Reenacted, transferred, redesignated and amended by Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.21, eff. December 1, 2019.


Sec. 38.352. IMMUNITY. This subchapter does not:


(1) waive any immunity from liability of a school district or of district school officers or employees;


(2) create any liability for a cause of action against a school district or against district school officers or employees; or


(3) waive any immunity from liability under Section 74.151, Civil Practice and Remedies Code.


Added by Acts 2013, 83rd Leg., R.S., Ch. 1321 (S.B. 460), Sec. 5, eff. September 1, 2013.


Reenacted, transferred, redesignated and amended by Acts 2019, 86th Leg., R.S., Ch. 352 (H.B. 18), Sec. 1.21, eff. December 1, 2019.

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EDUCATION CODE CHAPTER 38. HEALTH AND SAFETY

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EDUCATION CODE TITLE 2. PUBLIC EDUCATION SUBTITLE G. SAFE SCHOOLS CHAPTER 38. HEALTH AND SAFETY SUBCHAPTER A. GENERAL PROVISIONS Sec. 38.001. IMMUNIZATION; REQUIREMENTS; EXCEPTIONS. (a) Each student shall be fully immunized against diphtheria, rubeola, rubella, mumps, tetanus, and poliomyelitis, except as provided by Subsection (c).

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Munroe v. Central Bucks School District, 805 F.3d 454 (3d Cir. 2015).
This court case outlines a specific scenario of judicial law in which items posted to an educators blog ended in disciplinary action.

Natalie Munroe created a blog and among her many posts included a post in which she spoke about special education students

Munroe also indicated in her blog post that she was, in fact, posting on her blog during work hours

Munroe initiated this law suit using her first amendment rights as adequate evidence to support her actions

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United States Court of Appeals,Third Circuit.

Natalie MUNROE, Appellant, v. CENTRAL BUCKS SCHOOL DISTRICT; N. Robert Laws, Superintendent of Schools Central Bucks School District; Abram Lucabaugh, Principal Central Bucks High School East.

No. 14-3509.

Decided: September 04, 2015
Before AMBRO and COWEN, Circuit Judges RESTANI*, Judge. Stanley B. Cheiken, Esq. (Argued), Jenkintown, PA, Counsel for Appellant. Kimberly A. Boyer-Cohen, Esq. (Argued), Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, PA, Counsel for Appellee. Sean A. Fields, Esq., Pennsylvania School Boards Association, Mechanicsburg, PA, Counsel for Amicus Appellee Pennsylvania School Board Association.
OPINION OF THE COURT

Plaintiff Natalie Munroe filed this First Amendment retaliation action against Defendants Central Bucks School District ("School District"), School District Superintendent N. Robert Laws, and Central Bucks East High School ("CB East") Principal Abram Lucabaugh. The School District fired Munroe, an English teacher at CB East, after her blog-in which she made a number of derogatory comments about her own students-was discovered. She appeals from the order of the United States District Court for the Eastern District of Pennsylvania granting the Defendants' summary judgment motion. We agree with the District Court that, pursuant to the Pickering balancing test, Munroe's speech did not rise to the level of constitutionally protected expression. Accordingly, we will affirm.

I.

In 2006, Munroe was hired by the School District and assigned to teach English at CB East in Doylestown, Pennsylvania. Her performance evaluations indicated that she was generally considered to be an effective and competent teacher. For example, an October 2006 review praised her abilities and work habits. In June 2008, Lucabaugh wrote a letter of recommendation in support of Munroe's application for admission to a graduate program. He described Munroe as a "woman of utmost integrity, character, and intelligence," "a consummate educator with a sparkling future," and "a woman whom I respect both personally and professionally." (A175.) The School District granted Munroe tenure in March 2010.

In August 2009, Munroe began a blog entitled Where are we going, and why are we in this handbasket? Blogging under the name "Natalie M," she did not expressly identify either where she worked or lived, the name of the school where she taught, or the names of her students. According to Munroe, her blog was meant to be viewed by friends that she had asked to subscribe. She did not intend for it to be read by the public at large. For most of the blog's history, there were no more than nine subscribed readers, including Munroe herself and her husband. However, no password was required to access the blog.

Munroe wrote a total of eighty-four blog posts between August 2009 and November 2010, "most of which had nothing to do with her school or work." (Appellant's Brief at 6 (citing A208-A254, A412-A452).) Intended as a vehicle to keep in touch with friends, Munroe mostly addressed personal matters like her food and film preferences, her children, and her regular yoga classes. On a number of occasions, she wrote about her co-workers, the School District administration, her students, and their parents.

In what the District Court called "one memorable passage," Munroe v. Cent. Bucks Sch. Dist., 34 F.Supp.3d 532, 538 (E.D.Pa.2014), Munroe explained that she was entering grades, discussed the grading process, and, finally, offered some comments she would like to see added to the so-called "canned" comment list used to fill out students' report cards. At the top of this January 20, 2010 blog post, there was a depiction of a school bus with a "Short Bus" sign and the following heading: "I DON'T CARE IF YOU LICK THE WINDOWS, TAKE THE SPECIAL BUS OR OCCASSIONALLY PEE ON YOURSELF ․ YOU HANG IN THERE SUNSHINE, YOU'RE FRIGGIN SPECIAL." (A245). Munroe then stated the following:

I'm being a renegade right now, living on the edge and, um, blogging AT work.

However, as I'm blogging about work stuff, I give myself a free pass of conscience.

I'm in the process of entering grades, and also need to enter comments for the grades. I used to take a lot of time with this procedure, choosing just the right comment(s) for my students. If I put a negative one, I'd also put a positive one to temper it. (When I was in school, I hated when I got the same 2 or 3 comments from my teachers. It felt so insincere.)

(For the record, my computer froze and had to be shut down at work; when I rebooted, I didn't bother signing back on to finish this as other things to do came up. At present, then, I'm not being a renegade at all, as I'm writing this at my kitchen table.)

Anyway, as I was saying, when I was first teaching, I put a lot of time and effort into the comments because I felt it was a great way to communicate the students' efforts. Then it got to be a complete pain in the ass, just one more thing standing between me and being done the report cards, and suddenly I realized why I'd always gotten the same comments from my teachers: they didn't want to do them any more than I do. (I refuse to believe the alternative reason that I'll explore momentarily.)

Also, as the kids get worse and worse, I find that the canned comments don't accurately express my true sentiments about them. So now I pretty much choose "Cooperative in Class" for every kid (or, in some instances, will speak in other codes. For instance, if they talk a lot, I'll put "is easily distracted" or "talks persistently"; if it's a kid that has no personality, I'll put "ability to work independently"). For some kids, though my scornful feelings reach such fever pitch that I have a hard time even putting "cooperative in class" and have, sadly, had some kids for which none of the comments fit. (Again, this was NOT me. It couldn't have been. I was a delight!!)

Thus, for this blog, I will list the comments I'd like to see added to the canned comment list, as an accurate reflection of what we really want to say to these parents. Here they are, in no particular order:

* Concerned your kid is automaton, as she just sits there emotionless for an entire 90 minutes, staring into the abyss, never volunteering to speak or do anything.

* Seems smarter than she actually is.

* Has a massive chip on her shoulder.

* Too smart for her own good and refuses to play the school 'game' such that she'll never live up to her true potential here.

* Has no business being in Honors.

* A complete and utter jerk in all ways. Although academically ok, your child has no other redeeming qualities.

* Lazy.

* Shy isn't cute in 11th grade; it's annoying. Must learn to advocate for himself instead of having Mommy do it.

* One of the few students I can abide this semester!

* Two words come to mind: brown AND nose.

* Dunderhead.

* Complainer.

* Gimme an A.I.R.H.E.A.D. What's that spell? Your kid!

* There is such a thing as too loud in oral presentations. We shouldn't need earplugs.

* Att-i-tude!

* Nowhere near as good as her sibling. Are you sure they're related?

* I won't even remember her name next semester if I see her in the hall.

* Asked too many questions and took too long to ask them. The bell means it's time to leave!

* Has no business being in Academic.

* Rat-like.

* Lazy asshole.

* Just as bad as his sibling. Don't you know how to raise kids?

* Sneaking, complaining, jerkoff.

* Frightfully dim.

* Dresses like a street walker.

* Whiny, simpering grade-grubber with an unrealistically high perception of own ability level.

* One of the most annoying students I've had the displeasure of being locked in a room with for an extended time.

* Rude, belligerent, argumentative fuck.

* Tactless.

* Weirdest kid I've ever met.

* Am concerned that your kid is going to come in one day and open fire on the school. (Wish I was kidding.)

* I didn't realize one person could have this many problems.

* Your daughter is royalty. (The Queen of Drama)

* Liar and cheater.

* Unable to think for himself.

* I hear the trash company is hiring ․

* Utterly loathsome in all imaginable ways.

* I called out sick a couple of days just to avoid your son.

* There's no other way to say this: I hate your kid.

These comments, I think, would serve me well when filling out the cards. Only, I don't think parents want to hear these truths.

Thus the old adage ․ if you don't have anything nice to say ․

․ say "cooperative in class."

(A245-A246.)

On April 3, 2010, Munroe blogged about all of the "Things From This Day That Bothered Me." These "Things" were almost all work-related:

Things From This Day That Bothered Me

1. The fact that it was 85 degrees in my classroom because the district insists on controlling the temperature from central admin and won't turn on the AC until May 15th, even though people are sweltering NOW.

2. The fact that I called home about an obnoxious kid in class last week before break and his mom said they told him to "knock it off" (the obnoxious behavior), yet the FIRST thing he said to me when he saw me today was, "Yeah, Ms. M. I give you credit for tryin' to ruin my weekend. But the boys rallied up and had a banger anyway!" Clearly, the talk with his mom was quite effective.

3. The fact that several students in 3rd block did a lame job on their easy assignment today.

4. The fact that the jerk who was out 3 days around our last major assessment because his family took him on trip to Puerto Rico and then emailed me all of this nonsense about how he shouldn't have to take the test on time because he was "excused" for those days, was out again today (the date of another assessment) because his family took him to the effing Master's golf shit over Easter break. Can someone please tell me why Thursday-Wednesday wasn't enough time off to do what had to be done such that he could come back today when he KNEW there was an assessment? ? ? It's good that people value school so much-wait, no, they don't.

5. The new chick who seems to be on or near my elliptical all the damn time.

(A213.) In this same blog post, Munroe listed "Artists Who Annoy the Crap Outta Me and Who I Must Turn Off as Soon as I Hear the Opening Bars to Their Songs, But Who Are Regarded as 'Talent' by Some People" (i.e., Alicia Keys, Beyonce and Destiny's Child, and Miley Cyrus) as well as "Things I Liked About This Day." (Id.) None of the "Things I Liked About This Day" were related to her job or her students. Rather, these "Things" focused mostly on her daughter.

Discussing recent disciplinary issues and other problems (for instance, she had to deal with a student and his mother complaining about a test score), Munroe asked on October 27, 2009:

Kids! I don't know what's wrong with these kids today! Kids! Who can understand anything they say? They are disobedient, disrespectful oafs. Noisy, crazy, sloppy, lazy LOAFERS (and while we're on the subject) Kids! You can talk and talk till your face is blue. Kids! But they still do just what they want to do. Why can't they be like we were? (Perfect in every way!!!) What's the matter with kids today? $? ? ? ? My students are out of control. They are rude, disengaged, lazy whiners. They curse, discuss drugs, talk back, argue for grades, complain about everything, fancy themselves entitled to whatever they desire, and are just generally annoying․

In another blog post dated January 11, 2010, Munroe explained why she believed that "this new-aged soft-on-crime/bribery and overindulgence is probably the reason that kids are so horrible today." (A249.) According to Munroe, "teenagers are complete asses" who have no respect for adults, for authority, or for teachers. (Id.) "Parents won't allow anyone but themselves to discipline their kids, but THEY don't do any disciplining either." (Id.) Teenagers then talk back in school and "think it's appropriate to try to go into my desk to retrieve a hackey-sack that was confiscated during use in class." (Id.) Comparing how parents treat their children today with how she was raised, Munroe complained that parents were "breeding a disgusting brood of insolent, unappreciative, selfish brats." (A250.) Noting that "it's paper grading time again," Munroe observed in an April 17, 2010 blog post that "these times are getting worse and worse." (A416.) "The first semester of this school year, when I had a parade of whiny, entitled kids run to the guidance department to tell on me for giving them the low grades they earned on their shoddy papers, sort of scarred me. I consider myself very fair with my grading." (Id.)

There were also blog posts that addressed the concepts of honor and academic integrity as well as Munroe's concerns about student work habits and her negative attitude towards her job and her students. Munroe blogged (in a March 13, 2010 post) about her frustrating attempt to teach her students how to write a "Literary Analysis Paper" (describing, for instance, how, when she met with students to talk about their thesis statements, "I found that many of them didn't bother even attempting to revise their statements, instead coming to the 'conference' expecting me to tell them exactly what the problem was and how to fix it (and, all the better, to write it for them if I was willing ․ )," and how "one boy" said that he would ask his mother to look at the paper over the weekend). (A222.) Munroe lamented that "I teach and teach and teach, but no learning seems to happen." (A223.) "I work my ass off to help them achieve success, but the only one learning how to write a better paper is me. Like I said, I'm tired of the dance. I just want to sit this one out." (Id.) On January 23, 2010, she likewise claimed that, with each passing day, "I'm coming to, more and more, realize that I need all the blessings I can get" because "[t]hese kids are the devil's spawn." (A237.) She then discussed in some detail the importance of honor, how she addressed this concept in class (and the often hostile reaction on the part of some students), and, among other things, the fact that "TWO days after my lofty speeches, and a single day after they all signed the [honesty] pledge and pledge wall ․ someone [described as " 'that girl in the back in pink' "] had consciously made a cheat sheet and brought it in and intended to cheat." (A240.)

The School District administration first learned of Munroe's blog in February 2011 when a reporter from The Intelligencer (a local newspaper) began to ask questions about the blog. Specifically, the reporter e-mailed Laws on February 8, 2011, asking if he was "aware of this blog, which the students apparently have been circulating on facebook and through other social media." (A258.) On February 9, 2011, Lucabaugh met with Munroe, confronted her with printed copies of her blog posts, and placed her on immediate paid suspension. At this point in time, the School District had no regulation specifically prohibiting a teacher from blogging on his or her own time (although it appears that a policy was subsequently adopted by the School District).

In his deposition testimony, Lucabaugh described the fevered reactions on the part of students and their parents to Munroe's blog posts: "Kids were furious. They were livid. The calls that were coming in from parents, the e-mails that were coming in, kids had copies of it and they were distributing it in the halls." (A397.) The principal characterized CB East as "like a ticking time bomb" and asserted that the environment "was so incendiary" that the administration "thought we're going to have a riot or a sit-in or worse." (A398.) "To say it was a disruption to the learning environment is an understatement." (Id.) According to Lucabaugh, Munroe was escorted from the building for her own safety.

In what he described as an unprecedented situation, Lucabaugh began receiving e-mails from parents indicating that they did not want Munroe to teach their children. He continued to receive more and more e-mails throughout the summer, peaking in June and July of 2011. He asked his superiors: " 'What do I do with this?' 'Because I have to schedule the building and we have to get ready for class and I can't not put them in class. So what do I do with this'. I said-first of all, I have-now I'm talking over seventy-five, eighty people, ninety people, one hundred people, a hundred and-and it was growing." (A399.) It appears undisputed that the School District ultimately received over 200 "opt-out" requests from parents. While he recognized that it was the school board that had to decide how to handle these requests, Lucabaugh indicated that Munroe would probably not "have a chance" to teach in a "toxic environment" if "I already know that twenty-five students and their parents don't want their child in her class and they're in her class." (A400.) Accordingly, the decision was made to hire another teacher and have her "shadow" Munroe, i.e., teach the same exact schedule. Munroe claims that, "[i]n August 2011, Defendants [in retaliation for Munroe's expression] informed residents of the School District that they would honor all requests of students to 'opt out' of Munroe's classes." (Appellant's Brief at 10 (citing A105-A111).) According to Munroe, the School District "said it [allowed the opt-outs] in case students were uncomfortable returning to the classroom of a teacher who would say such things about them on her private blog." (A108.) She did not believe the School District's justification because it was unprecedented to allow students to opt out of a class. The real reason was because "they didn't want me to have any students to teach." (A111.) However, Munroe acknowledged that the whole situation was probably unprecedented.

The story was picked up by a widely-read internet news site, The Huffington Post, in a posting entitled "Natalie Munroe, Central Bucks Teacher, Suspended for Dissing Students On Blog." (A260.) Lucabaugh made a statement to the media. Munroe herself appeared on ABC, CBS, NBC, CNN, Fox News, and other television stations. She also gave interviews to several print news sources, including the Associated Press, Reuters, Time Magazine, and the Philadelphia Inquirer.

According to The Huffington Post, "Laws says the posts should result in termination but the district is still investigating ." ( Id.) In two e-mails, Laws expressed a desire to terminate Munroe's employment. In his February 11, 2011 e-mail, he indicated that one of the School District's "constitutional lawyers" was researching the matter. (A262.) On February 17, 2011, he noted that, "[f]or the legal team, we still need to confirm a plan for termination." (A266.) In a third e-mail dated February 24, 2011, Laws asked if Munroe's teaching certificate could be revoked, which "would, in effect, be a potentially less costly approach and, in effect, net the same result as a termination." (A268.)

In any event, Munroe went out on maternity leave, which had already been scheduled before the blog was discovered. Her leave ran from March 1, 2011 until the end of the 2010-2011 school year. On June 15, 2011, Lucabaugh completed Munroe's evaluation, concluding that her performance for the preceding academic term was unsatisfactory. The evaluation purportedly relied on a number of different grounds for this negative rating, including ineffective instructional delivery practices and inappropriate use of a "nanny cam" during teaching hours. However, it also observed that, in her blog posts, Munroe demonstrated "inappropriate or disrespectful interactions between teacher and students" and a "lack of knowledge of the Professional Code of Conduct." (A271-A272.) In particular, it was noted that Munroe failed to use acceptable and professional language and that her comments did not reflect sensitivity to the fundamental human rights of dignity, privacy, and respect. As a result, students and parents "expressed shock and outrage that their teacher would write about them in such derogatory terms and that their identity was not protected by the details provided in her blog which was placed on the internet to be accessed by anyone." (Id.) "Students and parents stated verbally and in writing that they would not return to this teacher's class because of what she had written in her blog," and students indicated that they lacked confidence in this teacher on account of "the breach in the student-teacher relationship." (Id.) In the summer of 2011, Laws submitted an "Educator Misconduct Complaint" to the Office of Chief Counsel of the Pennsylvania Department of Education, alleging that Munroe engaged in "[c]onduct inappropriate for an Educator." (A277.) The complaint was dismissed on the grounds of legal insufficiency. In addition, the School District denied Munroe's request for a transfer to another school.

Munroe returned to work in August 2011. The School District held a media briefing to announce her return. In a prepared statement, Lucabaugh explained that, "[w]hile her actions have created an unfortunate and incredibly difficult situation, Mrs. Munroe maintains employee rights, and that is the sole reason for her return." (A285.) According to the principal of CB East:

Whether or not Mrs. Munroe had the legal right to express her views with such vitriol is not the heart of this issue. No one here is contending that she can't say these things ․ legally. And for that reason, she has a legal right to return.

What is at the heart of this issue, however, is the large-scale disruption her comments created, and the ensuing damage they have caused the young men and women to whom she was alluding. Natalie Munroe's actions placed the outstanding work that occurs in our school in question, placed my leadership in question, placed our students' merit in the crosshairs of national scrutiny, breached trust with the community, and compromised her professional integrity. Her comments were unprofessional, disrespectful, and disturbing, particularly coming from the heart of an educator. Moreover, and most importantly, they were crass and CRUEL.

The obvious question left unanswered as the school year ended was whether or not Mrs. Munroe would be returning to teach in the fall. I should point out here that her maternity leave ends this month, and regardless of the moral and ethical issues surrounding her actions, Mrs. Munroe maintains employment rights.

․

Despite the fact that Mrs. Munroe retains legal employment rights, I would hope none of us lose sight of the real issue.

The real issue is that while something may be legally right, it may not be ethically or morally right. There are consequences that occur when a person chooses to exercise her rights and say outrageous, disrespectful, vulgar and cruel things about other people ․ especially when it's a teacher saying terrible things about the young men and women who are in her classroom.

As a public school, we are charged with meeting the needs of every student who enters our doors, rich or poor, gifted or learning disabled, troubled or triumphant, and guiding them to their full potential so they receive the most precious gift an education can provide: opportunity for choice in life.

What pains me the most in all of this is how the statements made by Mrs. Munroe have placed our students in the line of fire, and caused a nation to question their collective merit.

(A286-A288.)

Munroe received negative performance evaluations over the course of the 2011-2012 school year (which, unlike the evaluation she received at the end of the previous school year, did not expressly reference her blog and its effects), and she was required to complete detailed lesson plans (which she claimed were deliberately engineered to be too complicated to finish accurately). On June 1, 2012, the School District notified Munroe of its intention to terminate her employment based on charges of failure to meet requirements set forth in performance improvement plans, incompetency, unsatisfactory classroom management, unsatisfactory delivery of instruction, and unsatisfactory lesson planning. On June 26, 2012, the School District formally terminated her employment.

Munroe filed this action under 42 U.S.C. § 1983, alleging that Defendants violated her First Amendment rights. "Specifically, Munroe claims that the school administration harassed and eventually terminated her after discovering a private blog in which Munroe has expressed criticism of the school, her co-workers, and her students." Munroe, 34 F.Supp.3d at 533. The parties completed discovery, and Defendants moved for summary judgment. In a July 25, 2014 order, the District Court granted their motion and entered summary judgment in favor of Defendants and against Munroe.

In its opinion, the District Court ultimately concluded that Defendants did not violate Munroe's constitutional right to free expression. "Because this Court has determined as a matter of law that Plaintiff's comments do not merit protection under the balancing test established by [Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ]," it believed it was unnecessary to reach the question of whether this speech directly caused her termination. Munroe, 34 F.Supp.3d at 540-41. While it recognized that freedom of speech constitutes an indispensable condition of nearly every other right or liberty, see Palko v. Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 82 L.Ed. 288 (1937) (characterizing freedom of thought and speech as "the matrix, the indispensable condition, of nearly every other form of freedom"), overruled on other grounds, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the District Court pointed out that education "is one of the most heavily protected interests in modern American jurisprudence," Munroe, 34 F.Supp.3d at 541 (citing Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954)). "In this case, Plaintiff's speech, in both effect and tone, was sufficiently disruptive so as to diminish any legitimate interest in its expression, and thus her expression was not protected." Id.

II.

"[A] State may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech." Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). Free and unhindered debate on matters of public importance constitutes a core value of the First Amendment. See, e .g., Pickering, 391 U.S. at 573. Accordingly, public employees do not surrender all of their First Amendment rights merely because of their employment status. See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).

Nevertheless, "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Pickering, 391 U.S. at 568. In short, "the government as employer" possesses "far broader powers than does the government as sovereign." Waters v. Churchill, 511 U.S. 661, 671, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion). "When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom." Garcetti, 547 U.S. at 418. Government employers, like their private counterparts, still "need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services." Id.. As we explained in Miller v. Clinton County, 544 F.3d 542 (3d Cir.2008), "public employers are still employers, and they therefore have the same concern for efficiency and the need to review and evaluate employees as any other employer in order to ensure that the actions of employees do not interfere with the performance of public functions," id. at 547; see also, e.g., Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 987 (3d Cir.2014) ("At the same time, the Supreme Court also aptly recognizes the government's countervailing interest-as an employer-in maintaining control over their employees' words and actions for the proper performance of the workplace."). A public employer accordingly may impose speech restrictions that are necessary for efficient and effective operations. See, e.g., Dougherty, 772 F.3d at 987 ("Thus, '[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. [Garcetti, 547 U.S. at 419, --- S.Ct. at ----].").

"To establish a First Amendment retaliation claim, a public employee must show that (1) his speech is protected by the First Amendment and (2) the speech was a substantial or motivating factor in the alleged retaliatory action, which, if both are proved, shifts the burden to the employer to prove that (3) the same action would have been taken even if the speech had not occurred." Id. at 986. In order for his or her speech to rise to the level of constitutionally protected expression, the employee must speak as a citizen (and not as an employee), "the speech must involve a matter of public concern," and "the government must lack an 'adequate justification' for treating the employee differently than the general public based on its needs as an employer under the Pickering balancing test." Id. at 987 (quoting Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir.2009)). The Pickering balancing test requires the courts to " 'balance ․ the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' " Id. at 991 (quoting Pickering, 391 U.S. at 568). We must also consider, on the employee's side, the interest of the public in the speech at issue. Id. The question of whether or not speech is protected by the First Amendment constitutes a question of law. See, e.g., Miller, 544 F.3d at 548; Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.2006).

Defendants ask this Court to affirm the District Court's order on four different grounds: (1) Munroe's speech, in light of its content, form, and context, did not implicate a matter of public concern; (2) her speech was likely to cause-and, in fact, did cause-disruption "to the rendering of educational services by the District," and the Pickering balancing test accordingly "weighed in favor of Defendants and would not have prevented them from taking adverse action against Plaintiff based upon her speech" (Appellees' Brief at 22); (3) Munroe's speech did not constitute a substantial factor in the various negative performance evaluations she received or in her eventual termination; and (4) the School District would have pursued the same course of action even in the absence of any protected activity. We assume that Munroe's speech satisfied the "public concern" requirement. However, we conclude that her speech was likely to cause-and, in fact, did cause-disruption and that, under the circumstances, the School District's interest outweighed Munroe's interest, as well as the interest of the public, in her speech. Because her speech was not constitutionally protected, we (like the District Court) need not, and do not, reach Defendants' causation arguments.

A. The "Public Concern" Requirement

The Supreme Court has explained that speech implicates a matter of public concern when "it can 'be fairly considered as relating to any matter of political, social or other concern to the community,' [ Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ], or when 'it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,' [ City of San Diego v. Roe, 543 U.S. 77, 83-84, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam) ]." Snyder v. Phelps, 562 U.S. 443, 453, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011). Defendants acknowledge that, "[b]ecause of the nature of their employment, speech by public employees is deemed to be speech about public concern when it relates to their employment" so long as it is not speech upon matters of purely personal interest. (Appellees' Brief at 30.) Accordingly, speech that relates solely to mundane employment grievances does not implicate a matter of public concern. See, e.g., Sanguigni v. Pittsburgh Bd. of Pub. Educ., 968 F.2d 393, 399 (3d Cir.1992). In determining whether the speech at issue satisfies this element, courts should take into account the employee's motivation as well as whether it is important to our system of self-government that the expression take place. See, e.g., Azzaro v. Cnty. of Allegheny, 110 F.3d 968, 978 (3d Cir.1997) (en banc); Versage v. Twp. of Clinton, 984 F.2d 1359, 1364-65 (3d Cir.1993). "The arguably 'inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.' " Snyder, 562 U.S. at 453 (quoting Rankin, 483 U.S. at 387).

"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48. In Miller, we considered whether a letter written by an adult probation officer to the president judge of the county court of common pleas rose to the level of constitutionally protected speech. Miller, 544 F.3d at 546-51. We acknowledged that Miller's statements that the county probation office was being run ineffectively and that her supervisors called probation clients "scum" clearly referred to matters of public concern. Id. at 549. However, the Court then explained that her statements must be viewed in the context of the letter as a whole. Id. at 550. "We can not 'cherry pick' something that may impact the public while ignoring the manner and context in which that statement was made or that public concern expressed. Our inquiry must also consider the form and circumstance of the speech in question." Id. The letter focused on Miller's private grievances as an employee, and the statements about the office's ineffective operations and the supervisor's comments were collateral to the thrust of her complaint. Id. She clearly stated her reason for writing, i.e., that she would no longer work under the stressful conditions she had to face since an individual named Foresman became her supervisor. Id. "That declaration provides the context for all that follows." Id. In short, "Miller was upset with Foresman's supervision of her, and could no longer tolerate being supervised by her," and, given this context, "the brief references to an issue of public concern" could not be read as anything other than "a multi-faceted personal 'gripe' not unlike that voiced in [a questionnaire addressed by the Supreme Court in [Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ]." Id. The personal context of the letter, in addition to the tangential relationship between the issues of public concern and the letter's overall thrust, "so minimizes any public concern in the subject of her expression as to tip the First Amendment balance in favor of her employer." Id. at 551. We further noted that the letter harshly criticized Miller's supervisors, seemingly offered President Judge Saxton an ultimatum, and was disrespectful to the president judge himself. Id.

In the end, we stated that Miller, by "launching into an attack on management and her supervisors," managed to "brush ever so gently" against a matter of public concern. Id. However, "that seemingly serendipitous encounter does not convert her personal grievance into protected speech." Id.

According to Defendants, the District Court likewise determined that Munroe's speech failed to implicate a matter of public concern. On the one hand, the District Court stated that, "although the blog as a whole is dominated by personal issues, within certain blog posts are occasional passages that touch upon broad issues of academic integrity, the value of honor, and students' lack of effort ." Munroe, 34 F.Supp.3d at 537 (footnotes omitted). According to the District Court, each topic represented a matter of political and social concern, despite Munroe's use of strong language. On the other hand, the District Court proceeded to point out that "context matters" and to quote from our ruling in Miller. Id. It then observed that, on the few occasions where Munroe addressed issues of public concern on her blog, she did so in order to discuss personal matters. "Far from implicating larger discussions of educational reform, pedagogical methods, or specific school policies, Plaintiff mostly complained about the failure of her students to live up to her expectations, and focused on negative interactions between herself and her students." Id. at 537-38. The District Court specifically focused on the January 20, 2010 blog post. In this post, Munroe began by noting that she was blogging at work and then explained that she was entering grades and comments for the students' report cards, which she used to take very seriously. Instead of engaging in "any number of important discussions (such as the value of the grading system, her personal opinion on the effectiveness of assigning grades, etc.) that might have touched upon issues of public concern," Munroe stated that her scorn for some students was so extreme that she found it difficult even to indicate that they cooperated in class and that, for some students, none of the comments fit. Id. at 538.

We believe that the District Court ultimately disposed of Munroe's retaliation claim on the basis of the Pickering balancing test. Accordingly, it went on to observe that, even though she "may have occasionally written as a private citizen on matters of public concern," Munroe's "opprobrious tone" was likely to cause a strong reaction from anyone connected with her high school. Id. After "balancing the interests of the parties," id., the District Court reached the conclusion that "Plaintiff's speech, in both effect and tone, was sufficiently disruptive so as to diminish any legitimate interest in its expression, and thus her expression was not protected," id. at 541; see also, e.g., id . at 540-41 ("Because this Court has determined as a matter of law that Plaintiff's comments do not merit protection under the balancing test established by Pickering,․"). Under the circumstances, the District Court's discussion of the "public concern" concept are best understood as part of its application of the Pickering balancing test. In short, it appears that the District Court, in balancing the respective interests, accorded minimal weight to the interests of Munroe and the public in her speech because "the blog's 'overall thrust' devalues the discussion of public issues." Id. at 538 (quoting Miller, 544 F.3d at 550).

Of course, this Court may affirm on any ground supported by the record. See, e.g., Fairview Twp. v. U.S. EPA, 773 F.2d 517, 525 n. 15 (3d Cir.1985). Defendants present a strong case for why Munroe's speech failed to touch on a matter of public concern. While Munroe contends that her blog was "replete with references to her life's experience as an English teacher in an affluent, suburban Philadelphia School District" (Appellant's Brief at 23), she also acknowledges that this blog was intended as a vehicle to keep in touch with friends (and accordingly was never meant to be viewed by the public at large) and that she discussed such mundane topics as her favorite restaurants and family vacations. She admits that most of the "84 blog entries" published between August 9, 2009 and November 25, 2010 had "nothing to do with her school or work." ( Id. at 6 (citing A208-A254, A412-A452).) According to Munroe, it is illogical for us to review each and every one of her blog posts. We clearly should take into account the fact that it was not her blog posts on mundane topics like pie recipes and movie reviews that "went viral" once the media discovered her blog. Defendants themselves focused on Munroe's student-related blog posts (to the point of distributing "[c]opies of Mrs. Munroe's blog pertaining to students" at a media briefing (A286)). However, it is also well established that (as we explained in Miller ) the courts "can not 'cherry pick' something that may impact the public while ignoring the manner and context in which that statement was made or that public concern expressed." Miller, 544 F.3d at 550. Defendants (rather persuasively) contend that "a plain reading of Plaintiff's blog readily reveals that she was actually using it to vent personal grievances or express her visceral reaction to her daily experiences." (Appellees' Brief at 32.) For instance, her April 3, 2010 blog post featured a list of "Things From This Day That Bothered Me," which were almost all work-related. (A213.) However, this list appeared in the middle of a post that included lists of "Artists Who Annoy the Crap Outta Me and Who I Must Turn Off as Soon as I Hear the Opening Bars to Their Songs, But Who Are Regarded as 'Talent' by Some People" and "Things I Liked About This Day" (none of which involved her work as a public school teacher). (Id.) Even the January 20, 2010 blog post-in which Munroe offered several comments she would like to see added to the "canned" comment list used for students' report cards-was phrased in rather personal terms. She noted, for example, that the grading process was "a complete pain in the ass" and that her "scornful feelings" about certain students "reach such fever pitch" that it was difficult for her to put down " 'cooperative in class.' " (A245.) In the end, Munroe's various comments about her students arguably were no different than, inter alia, her restaurant critique.

Nevertheless, we reluctantly assume for the purposes of this opinion that Munroe's speech satisfied the "public concern" requirement.

As the District Court recognized, there were, at the very least, occasional blog posts that touched on broader issues like academic integrity, honor, and the importance of hard work. In particular, Munroe explained in some detail how she attempted to address the concept of honor in class and the often hostile reaction on the part of her students to her efforts (with one student possibly creating a cheat sheet only "TWO days after my lofty speeches, and a single day after they all signed the pledge and pledge wall" (A240)). In the critical January 20, 2010 blog post, she addressed some problems she saw with the grading process, specifically highlighting her past efforts to choose the right combination of positive and negative comments for the report cards and indicating that the "canned comments" did not accurately reflect her assessment of students' performance. (A245.) The list of suggested comments then were a rather clumsy attempt to use humor to highlight her points. Although the District Court criticized Munroe for failing to bolster her "personal invective" with "larger discussions of educational reform, pedagogical methods, or specific school policies," Munroe, 34 F.Supp.3d at 537-38, it also recognized that the inappropriate or controversial nature of a statement is irrelevant to the "public concern" inquiry, see, e.g., Snyder, 562 U.S. at 453. After all, humor, satire, and even "personal invective" could be used in order to make or embellish a point about a matter of political, social or other concern to the community, such as a school district's grading policies and practices. Munroe's inclusion of her list of proposed report card comments in a post critiquing the school district's grading process likewise indicated that this blog post ultimately involved more than a purely personal gripe against her students or the administration. In contrast, Miller's letter set forth what was essentially a personal gripe against management and her supervisors. See Miller, 544 F.3d at 550-51.

Munroe's blog posts also became the subject of extensive media coverage, and Munroe gave several interviews to national news organizations wherein she "defended her blog entries, refused to apologize for her opinions, and attempted to focus attention on the 'Education Debate.' " (Appellant's Brief at 8 (citing A114-A115).) We note that Munroe acknowledged that these interviews were driven largely by her desire to defend herself and her actions, and we also are troubled by the fact that the record and briefing contains essentially no evidence regarding the content of these interviews besides Munroe's general characterization of them. In any event, the extensive media coverage of her blog and the statements she made to the media generally indicated that Munroe met the "public concern" element. See Snyder, 562 U.S. at 543 (stating that speech implicates matter of public concern when it is subject of legitimate news interest).

As part of their discussion of the Pickering balancing test, Defendants rely on the Second Circuit's opinion in Melzer v. Board of Education, 336 F.3d 185 (2d Cir.2003), and the ruling by the Seventh Circuit in Craig v. Rich Township High School District 227, 736 F.3d 1110 (7th Cir.2013), cert. denied, --- U.S. ----, 134 S.Ct. 2300, 189 L.Ed.2d 175 (2014). Both circuit courts ultimately rejected retaliation claims-filed by educators who alleged that they were terminated for exercising their First Amendment rights-pursuant to Pickering. Craig, 736 F.3d at 1118-21; Melzer, 336 F.3d at 197-200. Nevertheless, the Second Circuit also assumed that a teacher's First Amendment activity satisfied the "public concern" element, Melzer, 336 F.3d at 196, and the Seventh Circuit expressly determined that a guidance counselor's speech implicated a matter of public concern, Craig, 736 F.3d at 1116-18.

In Melzer, a Bronx High School of Science teacher claimed that his constitutional rights to freedom of association and speech were violated when the board of education terminated his teaching position "in retaliation for his membership in the North American Man/Boy Love Association (NAMBLA or Association)." Melzer, 336 F.3d at 188-89. The Second Circuit assumed arguendo that "his activity centers on a matter of public concern, and is thus protected." Id. at 196. The Melzer court indicated that, "even if we were somehow to parse Melzer's activity into the public concern test, most of it would likely pass." Id. In short, NABMLA's stated goal is to effect change in public attitudes and laws regarding the age of consent, and advocacy in support of such a goal "is certainly a matter of public concern, regardless of the underlying subject matter." Id.

The plaintiff in Craig "self-published a short book of adult relationship advice entitled 'It's Her Fault.' " Craig, 736 F.3d at 1113. "And when we say 'adult,' we mean it in every sense of the word-in his book, Craig repeatedly discusses sexually provocative themes and uses sexually explicit terminology." Id. The Seventh Circuit agreed with Craig that his work dealt with a subject of general interest to the public (and that the district court erred by concluding otherwise). Id. at 1115-18. While the district court was correct that some parts of "It's Her Fault" (like Craig's description of his own sexual exploits) would not relate to a matter of public interest if viewed in isolation, it was wrong to conclude "that just because the book happened to touch[ ] on a matter of public interest (relationships between men and women) does not mean that it addresses a matter of public concern.' " Id. at 1117. According to the Craig court, "[t]hat is precisely what public concern means-speech directed to the public need only address a 'matter[ ] in which the public might be interested' in order to be eligible for First Amendment protection." Id. "Viewed as a whole, 'It's Her Fault' addresses adult relationship dynamics, a subject that interests a significant segment of the public. The proliferation of advice columns dealing with precisely this topic is a testament to its newsworthiness." Id..

Although we assume that Munroe's speech implicated a matter of public concern, this does not mean that her speech constituted speech protected by the First Amendment. We conclude (like the Second and Seventh Circuits) that, even if Munroe's speech was a matter of public concern, it was not constitutionally protected because the Pickering balancing test weighed in favor of Defendants.

B. Pickering Balancing Test

"On the employee's side of the scale, we must consider the interests of both [Munroe] and the public in the speech at issue." Dougherty, 772 F.3d at 991. On the other side of the Pickering balancing test, the Court must address "the government's legitimate and countervailing interest, as an employer, in 'promoting workplace efficiency and avoiding workplace disruption .' " Id. (quoting McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005)). The government need not show the existence of actual disruption if it establishes that disruption is likely to occur because of the speech. See, e.g., id. at 992 & n. 7. While the inquiry varies given the nature of the speech at issue, courts typically consider whether the speech impairs discipline or employee harmony, has a detrimental impact on close working relationships requiring personal loyalty and confidence, impedes the performance of the speaker's duties, or interferes with the enterprise's regular operations. See, e.g., id. at 991. "The balancing we must undertake is a fact-intensive inquiry that requires consideration of the entire record, and must yield different results depending on the relative strengths of the issue of public concern and the employer's interest." Miller, 544 F.3d at 548. In short, the inquiry "involves a sliding scale," in which "the amount of disruption a public employer has to tolerate is directly proportional to the importance of the disputed speech to the public." Id. at 549 n .2; see also, e.g., Dougherty, 772 F.3d at 991 ("The more tightly the First Amendment embraces the employee's speech, the more vigorous a showing of disruption must be made by the employer.").

We begin with Munroe's alleged interest and the alleged interest of the public in her blog posts and subsequent statements to the media. According to Munroe, the District Court was so preoccupied with her personal complaints (and the manner in which she chose to express herself) that it accorded little if any weight to these interests. Munroe contends that "the public was highly interested in a public school teacher's thoughts about the education debate," and her "blog, likely because of the strong language used by her, percolated a national conversation about the performance and expectations of students in an affluent, suburban public high school ." (Appellant's Brief at 26.) Given our reluctance to assume that the speech at issue here implicated a matter of public concern in the first place, we determine that the interests of Munroe and the public in this speech were entitled to (at best) only minimal weight under the Pickering balancing test.

In Dougherty v. School District of Philadelphia, 772 F.3d 979 (3d Cir.2014), this Court recently applied the Pickering balancing test in favor of an individual who was fired from his position as "the Deputy Chief Business Officer for Operations and Acting Chief of Operations for the Office of the Deputy Superintendent within the School District of Philadelphia" after he publicly disclosed the alleged misconduct of the school district superintendent in steering a contract, id. at 982-83. According to Munroe, the Philadelphia School District attempted to devalue the constitutional merit of a teacher's expression on the grounds that his statements were focused on personal concerns about his employment-an attempt this Court rejected. She claims that the District Court similarly erred here in devaluing her speech. However, she actually quotes from the section of the Dougherty opinion addressing the distinct question of whether Dougherty was speaking as a citizen. Id. at 987-90. While it is undisputed that Munroe was speaking here as a private citizen, it was, in turn, uncontested that Dougherty's speech involved a matter of public concern. Id. at 987. Furthermore, Dougherty was not a teacher; he instead served as a business and operations manager for a school district responsible for, among other things, developing capital projects and soliciting bids for these projects. Id. at 982-83. The issue addressed in Dougherty and the facts presented therefore are readily distinguishable.

We further explained that " '[s]peech involving government impropriety occupies the highest rung of First Amendment protection.' " Id. at 991 (quoting Swineford v. Snyder Cnty., 15 F.3d 1258, 1274 (3d Cir.1994)). Noting that Dougherty's report to The Philadelphia Inquirer exposing the superintendent's alleged misconduct constituted an archetypical example of this sort of expression, the Court observed that the defendants had to satisfy a truly heavy burden "[a]gainst the public's significant interest in Dougherty's act of whistleblowing" (a burden that they did not meet). Id.; see also, e.g., id. at 987 n. 5 ("As we have long recognized, '[d]isclosing corruption, fraud, and illegality in a government agency is a matter of significant public concern.' " (quoting Feldman v. Phila. Hous. Auth., 43 F.3d 823, 829 (3d Cir.1994))). Munroe does not claim that she exposed any corruption, fraud, or other forms of illegal conduct on the part of Defendants (or anyone else). If anything, her blog more closely resembled "It's Her Fault"-the work of adult relationship advice at issue in Craig-as opposed to the acts of whistleblowing considered in Dougherty. While it determined that this book touched on a matter of public concern, the Seventh Circuit went on to explain (as part of its Pickering analysis) that a guidance counselor's "view of relationships is not the sort of topic of expression that Defendants would require a compelling reason to restrict." Craig, 736 F.3d at 1120.

Given our assessment of the interests of Munroe and the public in her speech, Defendants were not required to make an especially vigorous showing of actual or potential disruption in this case. However, even if we were to assume arguendo that her speech "possesses the highest value," Melzer, 336 F.3d at 198, we would still conclude that Defendants met their burden. Simply put, "Plaintiff's speech, in both effect and tone, was sufficiently disruptive so as to diminish any legitimate interest in its expression, and thus her expression was not protected." Munroe, 34 F.Supp.3d at 541.

Munroe attacks the District Court for focusing on the opprobrious tone of her blog posts and suggesting that her expression would be afforded greater protection if she engaged in a more lofty discussion of educational issues. Claiming that "[i]t is essential to remember that'․ the very core of the First Amendment is that the government cannot regulate speech 'because of its message, its ideas, its subject matter, or its content,' " she contends that the District Court's content-based approach "has no place in the Pickering test." (Appellant's Brief at 24 (quoting Startzell v. City of Phila., 533 F.3d 183, 192 (3d Cir.2008)).) However, the opinion she cites did not involve a retaliation claim against a public employer. See Startzell, 533 F.3d at 188 ("The parties to the events surrounding the October 2004 OutFest [a street festival] have differing, indeed contrary, views of the protection that the First Amendment affords to organizers of events that generate counter-protests and the rights of those counter-protestors ."). It is well established that a government has broader powers to regulate speech when it acts as an employer than when it acts as a sovereign. See, e.g., Waters, 511 U.S. at 671 (plurality opinion); Pickering, 391 U.S. at 568. Accordingly, in order for his or her speech to be protected by the First Amendment, the employee must speak as a citizen, the speech must implicate a matter of public concern, and, of particular significance here, "the government must lack an 'adequate justification' for treating the employee differently than the general public based on its needs as an employer under the Pickering balancing test." Dougherty, 772 F.3d at 987. While the inappropriate tone of the speech may be irrelevant to the "public concern" inquiry, see, e .g., Snyder, 562 U.S. at 453, such considerations could play a critical role in ascertaining the existence and likelihood of disruption. After all, it would seem more likely that an employee's comments about his or her supervisors and coworkers would impair discipline or employee harmony if they are phrased in less "elevated"-and more "opprobrious"-terms. Likewise, invective directed against the very persons that the governmental agency is meant to serve could be expected to have serious consequences for the performance of the speaker's duties and the agency's regular operations. The First Amendment, for instance, does not require a public employer "to sit idly by" while its police officers and firefighters make racial insults against "those they are hired to serve and protect." Locurto v. Giuliani, 447 F.3d 159, 183 (2d Cir.2006); see also, e.g., Pickering, 391 U.S. at 569-70 ("The statements are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher."); Craig, 736 F.3d at 1119 ("An employer may have more leeway in restricting the speech of an employee whose position requires contact with the public.").

Similarly, we believe it was appropriate for the District Court to consider whether Munroe's speech "would erode the necessary trust and respect between Munroe and her students." Munroe, 34 F.Supp.3d at 539. Munroe views such considerations as nothing more than "code" for punishing unpopular speech, and she contends that they would allow a school district to fire a teacher on the grounds of political affiliation, religion, or grading policies, thereby making a mockery out of the First Amendment itself. (Id. at 27.) She even goes so far as to claim that "[h]igh school students are not required to trust or respect their teachers." (Id. at 27-28.) In Pickering itself, the Supreme Court indicated that it was appropriate to consider whether a teacher's expression "either impeded the teacher's proper performance of his daily duties in the classroom" or "interfered with the regular operation of the schools generally." Pickering, 391 U.S. at 572-73 (footnote omitted). As the District Court noted, the job of a public school educator implicates a rather special set of circumstances and responsibilities. "Plaintiff worked in a school, where students 'are impressionable and their attendance is involuntary.' " Munroe, 34 F.Supp.3d at 539 (quoting Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987)). One generally expects that a teacher would: (1) refrain from expressing outright hostility and disgust against them on her blog (at least where the blog itself was not protected by a password and evidently could be (and, in this case, was) discovered by the media and members of the school community); (2) when confronted with her derogatory comments, publicly defended what she had said; and (3) in the process, singled out specific and identifiable students as the targets of her ire. As the PSBA helpfully notes in its amicus brief, the Pennsylvania Code of Professional Practice and Conduct for Educators states, inter alia, that professional educators are expected to value "the worth and dignity of every person, student and colleague alike," 22 Pa.Code § 235.3, and to exercise care in maintaining confidentiality, 22 Pa.Code § 235.4(b)(9).

"The position of public school teacher 'requires a degree of public trust not found in many other positions of public employment.' " Munroe, 34 F.Supp.3d at 539 (quoting Melzer, 336 F.3d at 198). A teacher generally acts in loco parentis for his or her students. Melzer, 336 F.3d at 199; see also Craig, 736 F.3d at 1119 ("The fact that Craig works closely with students at a public school as a counselor confers upon him an inordinate amount of trust and authority." (citing Edwards, 482 U.S. at 584; Melzer, 336 F.3d at 198)). Like the Second Circuit, "[w]e acknowledge the truism that community reaction cannot dictate whether an employee's constitutional rights are protected." Melzer, 336 F.3d at 199. The First Amendment generally does not permit the so-called "heckler's veto," i.e., "allowing the public, with the government's help, to shout down unpopular ideas that stir anger." Id.; see also Craig, 736 F.3d at 1121 (referring to "heckler's veto" in which unpopular speech is prohibited on account of community's possible reaction). However, there is a special (perhaps even unique) relationship that exists between a public school teacher (or other educators, like a guidance counselor), on the one hand, and his or her students and their parents, on the other hand. Simply put, neither parents nor students could be considered as outsiders seeking to "heckle" an educator into silence-" 'rather they are participants in public education, without whose cooperation public education as a practical matter cannot function.' " Craig, 736 F.3d at 1121 (quoting Melzer, 336 F.3d at 199). We accordingly agree with the Second and Seventh Circuits that it is generally appropriate to consider the reactions of students and parents to an educator's speech under the Pickering balancing test. Id. ("Given the nature of this case, we think it appropriate to consider Defendants' interests in preserving a safe counseling environment at Rich Central as part of our analysis."); Melzer, 336 F.3d at 199 ("Any disruption created by parents can be fairly characterized as internal disruption to the operation of the school, a factor which may be accounted for in the balancing test and which may outweigh a public employee's rights.").

We find that Munroe's various expressions of hostility and disgust against her students would disrupt her duties as a high school teacher and the functioning of the School District. Munroe, for her part, does not really deal with the specific language she used in her blog posts. Instead, she tends to describe her student-related comments in rather general terms, e.g., she purportedly made comments about her students' unwillingness to work hard and cooperate in school, the lack of student accountability, and the lack of support for teachers on the part of both parents and administrators. However, Munroe's list of "proposed report card comments" (Appellant's Brief at 25) included statements like-"A complete and utter jerk in all ways," "Rat-like," "Lazy asshole," "Sneaky, complaining, jerkoff," "Dresses like a street walker," "Rude, belligerent, argumentative fuck," "Am concerned your kid is going to come in one day and open fire on the school. (Wish I was kidding.)," "I hear the trash company is hiring," "Utterly loathsome in all imaginable ways," and "There's no other way to say this: I hate your kid" (A245-A246). Munroe went so far as to include a depiction of a school bus at the top of the post-together with a comment disparaging special needs students: "I Don't Care If You Lick The Windows, Take The Special Bus Or Occasionally Pee On Yourself ․ You Hang In There Sunshine, You're Friggin Special." (A245 (emphasis omitted).) Even if intended as part of a comedic exercise, such characterizations speak for themselves. Simply put, they were despicable. Furthermore, Munroe, in multiple blog posts, ranted against her own students. To give just a few examples, she called them "the devil's spawn" (A237), "Noisy, crazy, sloppy, lazy LOAFERS" (A440), and "rude, disengaged, lazy whiners" (id.). As the District Court then explained, "[t]he discovery of the blog undermines Plaintiff's early assumptions that her small readership and relative anonymity would protect her personal comments from reaching their subjects, especially as the blog was not password protected." Munroe, 34 F.Supp.3d at 538. In addition, students would have been able to identify themselves or their classmates in at least some of her derogatory comments. Parents likewise could occasionally identify both themselves and their children from her "vivid and personal appraisal of [student] character." Id. at 539. In her blog post identifying the "Things From This Day That Bothered Me," Munroe singled out "the jerk who was out 3 days around our last assessment because his family took him on trip to Puerto Rico" and who "was out again today (the date of another assessment) because his family took him to the effing Master's golf shit over Easter break." (A213.) She also pointed, inter alia, to the fact that she called home about an obnoxious student the week before the break and, even though his mother "said they told him to 'knock it off,' " the first thing he did when he saw her was to mock her failed effort to ruin his weekend. (Id.) Munroe claimed in another blog post that a female student (described as the girl in the back in pink) made a cheat sheet only two days after Munroe's speech about honor and integrity and one day after the class signed an honor pledge. Even the "report card comments" she wished to add to the "canned" comment list were often phrased in suspiciously specific terms.

We also observe that Munroe "did not take a conciliatory approach" in her subsequent media appearances. Id. at 538. Instead, she purportedly defended her blog entries and refused to apologize for the comments. Students and parents were thereby presented with a teacher who expressed hostility and disgust against her own students and who, when publicly confronted with her comments, not only refused to apologize-but even went so far as to defend her derogatory statements in the local and national media.

It would be an understatement to say that Munroe's speech caused rather negative reactions on the part of both students and their parents. Likewise, it is wrong to claim (as Munroe does in her appellate brief) that "the School District [at most] demonstrated that some township residents were unhappy with Munroe's comments." (Appellant's Brief at 28.) According to CB East's principal, the students were "furious" and "livid," and the school was "like a ticking time bomb." (A397.) "To say it was a disruption to the learning environment is an understatement." (A398.) Lucabaugh then began to receive e-mails from parents indicating that they did not want Munroe to teach their children, and (as the District Court noted) students were permitted to opt out of Munroe's class. The School District hired another person to "shadow" Munroe. In other words, another educator was paid to teach the same exact schedule as Munroe herself. While Munroe views the Defendants' decision to inform residents in August 2011 that they would honor all "opt-out" requests as an unprecedented step meant to set her up for failure, she also acknowledged in her deposition testimony that the whole situation was probably unprecedented. In fact, it appears uncontested that Lucabaugh continued to receive more and more e-mails from concerned parents throughout the summer and peaking in June and July of 2011. "[N]ow I'm talking over seventy-five people, eighty people, ninety people, one hundred people, a hundred and-and it was growing." (A399.) When a teacher's derogatory comments about his or her students cause numerous parents to tell the school district that they "don't want her as my child's teacher" (id.), it is appropriate to conclude that his or her speech " 'impedes the performance of the speaker's duties' " as a teacher. Dougherty, 772 F.3d at 991 (quoting Rankin, 483 U.S. at 388). Such speech then " 'interferes with the regular operation of the enterprise' " because the school district hired another teacher to accommodate the sheer and unprecedented number of parental "opt-outs" it received. Id. (quoting Rankin, 483 U.S. at 388); see also Pickering, 391 U.S. at 57273 (considering whether teacher's speech "either impeded the teacher's proper performance of his daily duties in the classroom" or "interfered with the regular operation of the schools generally" (footnote omitted)).

Munroe does point out that she was allowed to return to work the following school year (after her paid suspension and maternity leave ended) and that, after then teaching for a full year, she was ultimately terminated-supposedly on account of her poor performance. When she returned to work, Lucabaugh informed the media that "[n]o one here is contending that she can't say these things ․ legally" and that "she has a legal right to return." (A286.) According to Munroe, Defendants thereby recognized that Munroe's right to free expression outweighed any disruption and accordingly chose not to terminate her when she returned to work in August 2011. She claims that "the School District cannot now be heard to say that a threat of disruption to the operation of its schools outweighed Munroe's rights." (Appellant's Brief at 31.) Munroe further contends that the District Court evidently determined that disruption automatically barred her claim, instead of treating such disruption as a factor to be weighed as part of what this Court in Dougherty recognized as a true balancing test.

While Defendants' actions here were somewhat unusual and further complicate an already difficult situation, we do not agree that they are now somehow estopped or barred from claiming that the actual and potential disruption caused by Munroe's speech outweighed her free speech rights-or that such actions on their part otherwise meant that there was no disruption (or that the Pickering balancing test necessarily weighed in favor of Munroe). After all, Defendants need not make out a particularly strong showing of disruption in this case given the weakness of Munroe's interest, as well as the interest of the public, in her speech. See, e.g., Miller, 544 F.3d at 549 n. 2. In Dougherty, we acknowledged that Dougherty's speech caused actual disruption to the school district, but we then highlighted the absurdity of allowing corrupt officials to punish their whistleblowing subordinates because the speech had a somewhat disruptive effect. Dougherty, 772 F.3d at 992-93. Munroe, unlike Dougherty, was not a whistleblower. The District Court, in any event, appropriately took into account the competing interests and then determined that the speech at issue here was not protected because the disruption diminished any legitimate interest in its expression. Furthermore, the First Amendment does not require a school district to continue to employ a teacher who expresses the kind of hostility and disgust against her students that Munroe did on her blog and then publicly defends such comments to the media-which results in serious negative reactions on the part of both students and parents, the submission of numerous parental "opt-out" requests, and the hiring of an additional teacher. It appears that Munroe could have been fired when Defendants became aware of her blog posts (although the fact that she was scheduled to begin her maternity leave may have complicated the situation) or at least at the beginning of the next school year. But Defendants should not be held liable for violating the First Amendment simply because they (rather generously) hired another teacher and permitted Munroe to return to work or because of what was said at the principal's media briefing. As the District Court also noted, Lucabaugh did not explain whether his assessment was premised on the United States Constitution, state law, or the terms of Munroe's employment contract. In fact, C.B. East's principal made it clear that Munroe's speech caused disruption and harmed C.B. East's students, explaining that "[w]hat is at the heart of this issue, however, is the large-scale disruption her comments created, and the ensuing damage they have caused the young men and women to whom she was alluding." (A286.)

In Melzer, the Second Circuit assumed that Melzer's activities on behalf of NAMBLA possessed the highest value under the First Amendment and placed a heavy burden on the board of education to justify his dismissal. Melzer, 336 F.3d at 198. However, it still concluded that, given the nature of his position as a public school teacher, "the disruption they cause is great enough to warrant the school's action against him." Id. While some parents and students expressed support for his free speech rights and there were certain minor discrepancies with respect to the reported disruption, "[i]t is nonetheless entirely reasonable for the Board to believe that many parents and students had a strong negative reaction to him, and that such a reaction caused the school to suffer severe internal disruption." Id. A psychological expert testified that a teacher with Melzer's beliefs would provoke anxiety for the average student (e.g., he or she would be unable to concentrate or would be uncomfortable asking for help after class). Id. at 198-99. The Second Circuit pointed out that, while "[h]e acts in loco parentis for a group of students that includes adolescent boys," he simultaneously "advocates changes in the law to accommodate his desire to have sexual relations with such children." Id. at 199. "We think it is perfectly reasonable to predict that parents will fear his influence and predilections. Parents so concerned may remove their children, thereby interrupting the children's education, impairing the school's reputation, and impairing educationally desirable interdependency and cooperation among parents, teachers, and administrators." Id . In fact, several parents threatened to remove their children from the school, and Melzer candidly admitted that it would be difficult for him to decide whether to report an incident of child molestation . Id. at 191, 199.

Similarly, we find it significant that the Seventh Circuit determined that the defendants' interests in remedying the potential disruption caused by a guidance counselor's book of adult relationship advice outweighed his own speech interest. Craig, 736 F.3d at 1119. As the Craig court explained, "Defendants' assessment of how Craig's students, and particularly his female students, would respond upon reading or hearing about the hypersexualized content looms large in our analysis." Id. For instance, female students could easily feel uncomfortable asking for his advice given "his professed inability to refrain from sexualizing females." Id. at 1120. Likewise, some students could be apprehensive about speaking with Craig on account of his derogative view of women. Id. He specifically claimed in his book-which, after all, was entitled "It's Her Fault"-that women do not succeed in relationships because of their tendency to act based only on their emotions and emphasized "the importance of a woman's sexual 'submissiveness' to her male partner." Id. The Seventh Circuit understandably asked whether a female high school student would really speak with a guidance counselor about future career options knowing he believed women are not inclined to rational thought or go to him to discuss relationship issues given his views about sexual submissiveness. Id.

Obviously, Munroe does not support sexual relations with minors, and she likewise did not publish a book confessing to her inability to refrain from sexualizing her students. However, she still expressed hostility and disgust against her own students. "Is it unreasonable to think a [CB East student] who learned that[, to give just one example, Munroe referred to her students as 'the devil's spawn' (A237) ] may decide against" asking her advice? Id. Likewise, how could students be expected to participate in a class when a teacher indicated that she wished she could use terms like "Rat-like" on their own report cards (even if her list was intended as a humorous exercise)? (A245.) Accordingly, we determine that, pursuant to the Pickering balancing test, Munroe's speech did not constitute speech protected by the First Amendment.

III.

We will affirm the order of the District Court granting Defendants' motion for summary judgment.

My colleagues focus on Ms. Munroe's claim that she was retaliated against for authoring offensive blog posts. This is an issue that is closer than they suggest. However, I need not deal with it, as there is more to Munroe's lawsuit than blog posts to friends that became public. A critical component is the allegation that the TV and print interviews Munroe gave following her suspension by the School District factored into its discharge decision 15 months later. Unexplainably, the District Court declined to address this argument, saying only in a footnote that, even if it had considered the interviews, that wouldn't have changed its decision to enter summary judgment. See Munroe v. Cent. Bucks Sch. Dist., 34 F.Supp.3d 532, 538 n.65 (E.D.Pa.2014). That is not very satisfying. If Munroe had a First Amendment right to say her piece before a national audience, and no doubt she did (even the School District acknowledged this), then summary judgment is inappropriate to the extent her TV appearances, coupled with her comments made to print media, played a role in her dismissal and the School District wouldn't have taken the same action absent them. See Miller v. Clinton Cnty., 544 F.3d 542, 548 (3d Cir.2008).

Like the District Court, my colleagues duck this argument. Their out, however, is that Munroe didn't "devote[ ] much attention to the subsequent media coverage," Maj. Op. 35 n.7, and provided "essentially no evidence regarding the content of the[ ] interviews besides [her] general characterization of them," id. at 34-35. Because I do not share that assessment and would reverse to allow a jury to consider whether Munroe's interviews with the media contributed to the allegedly retaliatory dismissal, I respectfully dissent.

The first order of business is to determine whether Munroe adequately preserved the claim that she was retaliated against for discussing her suspension with various news organizations. Parting ways with the conclusion of my colleagues, see Maj. Op. 35 n.7, I think the answer is a resounding yes. Though Munroe may not have made the claim the focus of her case, she certainly raised it at every stage in the District Court and again on appeal. In her complaint, she alleges that the School District punished her for appearing on "CBS, ABC, NBC, CNN, Fox News" and giving interviews to, among others, "Time Magazine, Reuters, the Associated Press, [and] the Philadelphia Inquirer," and that all these appearances "were protected under the First Amendment." Am. Compl. ¶¶ 23-29. Likewise, her response to the School District's summary-judgment motion argues that she "engaged in two types of speech, each of which [is] protected under the First Amendment[:] First, [she] blogged to her friends and family about her experiences at CB East ․ [;][and][s]econd, [she] engaged the media in a very public debate about her blog and the Education Debate discussed in [it]." Pl.'s Opp'n Defs.' Mot. Summ. J. 15-16. And the District Court apparently thought enough of the argument to address it (though only in a footnote), positing that "the analysis would not change ․ upon consideration of the interviews [Munroe] gave to the media." Munroe, 34 F.Supp.3d at 538 n.65.

Finally, on appeal in the section of her brief titled "Statement of the Issue Presented for Review," Munroe poses the following question: "Did the District Court err in holding that a public school teacher's opinions about matters of public concern, published in her blog and stated in interviews to various media outlets, were unworthy of First Amendment ․ protection under the Pickering v. Board of Education [391 U.S. 563 (1968) ] balancing test?" Munroe Br. 1 (emphasis added). She also addresses the claim in the section of her brief titled "Rulings Presented for Review," Munroe Br. 14, and develops her argument in later sections, see id . at 26 (asserting that her media appearances implicated a matter of public concern), id. at 28 (pointing out that "there was no evidence offered to demonstrate that [her] blog entries, or her interviews with the media, prevented her from doing her job as a high school English teacher" (emphasis added)). Even the School District deems Munroe's argument about the media interviews important enough to address. It contends that the interviews shouldn't receive First Amendment protection and, in any event, "there is no genuine issue of any material fact that Plaintiff would have been terminated even in the absence of her blog and media tour." School Dist. Br. 51 (emphasis added). In this context, Munroe has adequately raised, both before the District Court and on appeal, whether her media interviews were a reason for the retaliation she alleges. I thus move to the merits.

To succeed on her claim, Munroe must establish that the interviews were "protected by the First Amendment and ․ [were] a substantial or motivating factor" in the allegedly retaliatory discharge. Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 986 (3d Cir.2014); see also Miller, 544 F.3d at 548. If she succeeds, the burden shifts back to the School District to show it would have fired her regardless whether she had told her story before a national audience. The First Amendment question-which, per Pickering, balances "the interest in freedom of expression against the employer's interests[-]is to be done by the judge, not the jury." Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 194, 198 (7th Cir.1996) (Posner, J). The causation issues, by contrast, the jury decides. See Watters v. City of Phila., 55 F.3d 886, 892 n .3 (3d Cir.1995).

The threshold issue in determining if Munroe's speech was protected by the First Amendment is whether her interviews with the national media implicated a matter of public concern. See Craig v. Rich Twp. High Sch. Dist. 227, 736 F.3d 1110, 1115 (7th Cir.2013). If she can show this, the School District's interest in promoting an "effective and efficient" learning environment is balanced against Munroe's interest in commenting on her suspension. Id. at 1118 (quoting Chaklos v. Stevens, 560 F.3d 705, 714 (7th Cir.2009) (internal quotations marks omitted)). The outcome of that test, called Pickering balancing, yields the answer to whether the First Amendment protects Munroe's TV appearances and print interviews.

On the public-concern question, I see no difficulty (nor apparently do my colleagues, see Maj. Op. 34-35) in concluding that Munroe's TV appearances involved a matter of "legitimate news interest," San Diego v. Roe, 543 U.S. 77, 84, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam ), or a matter "in which the public might be interested," Dishnow, 77 F.3d at 197. See also Eberhardt v. O'Malley, 17 F.3d 1023, 1026 (7th Cir.1994) (Posner, J.) ("The First Amendment protects entertainment as well as treatises on politics and public administration."). The relevant sequence of events is instructive.

After the public learned of Munroe's blog, Central Bucks High School East ("CB East") Principal Abram Lucabaugh moved swiftly to suspend her and issued a televised statement explaining the School District's decision to do so. Caught off guard by the public announcement, Munroe "felt ․ it was necessary to share [her] side of the story." Munroe Dep. Tr. 58:5-12. Luckily for her, the suspension became a national news story, and when it did a number of highly prominent news programs invited her to discuss the situation on live TV. Among them were ABC's Good Morning America and Fox News's Fox and Friends and Justice with Jeanine. Time Magazine and The Philadelphia Inquirer, among others, likewise wanted the scoop. While Munroe maintains she focused on whether "today's youth is overindulged, underworked, and self-entitled" and whether "their parents and schools have been complicit in creating this result," Pl.'s Reply Mem. Law Opp. Defs.' Mot. Summ. J. 3, the School District argues otherwise. It contends that Munroe used the interviews to defend herself, not to engage in a public debate. The likely answer is a combination of both, but the key is that Munroe's media tour focused on an event that had already captured the public's attention: the suspension of a public school teacher for criticizing her students on a publicly available blog. As one prominent publication put it, Munroe found "herself in the middle of a swirling online debate-not over what she did, but over what she said about the sometimes harsh realities of the 21st century classroom." Kayla Webley, How One Teacher's Angry Blog Sparked a Viral Classroom Debate, TIME (Feb. 18, 2011), http:// content.time.com/time/printout/ 0,8816,2052123,00.html. Munroe's intimate familiarity with the facts made her account all the more newsworthy. Viewed in that light, Munroe's failure to introduce in court a play-by-play of her media appearances is of no consequence.

Having concluded that Munroe's media tour implicated a matter of public concern, I turn to the Pickering balancing portion of the analysis. On that front, to repeat, a court must "balance the employee's interest in engaging in her speech with the employer's countervailing interests." Miller, 544 F.3d at 548. In the school context, those interests include a teacher's ability to fulfill her duties in the classroom. See Melzer v. Bd. of Educ. Dist. of City of N.Y., 336 F.3d 185, 198-99 (2d Cir.2003). "[T]he amount of disruption a public employer has to tolerate is directly proportional to the importance of the disputed speech." Miller, 544 F.3d at 549 n. 2.; see also Dishnow, 77 F.3d at 197 (noting that the public employer must show that it "had a convincing reason to forbid the speech" in question). Though the School District argues that its "interest in curtailing speech that affected [CB East]'s operation [is] great," School Dist. Br. 40, it has pointed to nothing suggesting that Munroe's appearances in the national media (as distinct from her blog) interfered with her ability to educate her students. Nor has it argued that Munroe's decision to tell her side of a story that spawned a spirited public debate negatively affected employee morale. My colleagues have no answer and say only that the First Amendment doesn't require a school district to continue employing a teacher "who, when publicly confronted with her comments, not only refused to apologize-but even went so far as to defend her derogatory statements in the local and national media." Maj. Op. 50.

The most that can be said of these arguments is that Munroe didn't "take a conciliatory approach" when interviewed and "fanned the flames of controversy." Munroe, 34 F.Supp.3d at 538. But, even if true, it says nothing about whether this made the job of running CB East more difficult. Furthermore, it is hard to take seriously the School District's disruption argument when it did virtually nothing to quell the disorder that supposedly prevented CB East from satisfying its educational mission. After Munroe's blog became public and the ensuing firestorm of publicity, the School District could presumably have asserted that its educational obligations outweighed Munroe's free-speech rights and discharged her. But it opted instead to suspend her, which was of minimal import to Munroe, as this coincided with her planned maternity leave. The School District had a second opportunity to dismiss (or, at the very least, transfer) Munroe when, after her suspension was lifted, CB East students opted out of her class en masse in August 2011. But again the School District didn't do so. The result, in my view, is that the School District forfeited its right to match its operational interests against Munroe's free speech interests.

For these reasons, I see no path to conclude that the Pickering balance weighs in the School District's favor.

That takes me to the final two questions, both of which deal with causation. First, were Munroe's interviews a motivating factor in the School District's discharge decision? See Watters, 55 F.3d at 892 (noting that, to succeed on a retaliation claim, a "plaintiff must show that the protected activity was a substantial or motivating factor in the alleged retaliatory action"). If they were, has the School District carried its burden to show that it would have reached the same decision regardless of the interviews? See id. Precedent counsels us to tread carefully when deciding issues of causation on summary judgment-all the more so here.

That School District officials were upset about Munroe's media tour is made plain by two "smoking-gun" emails. After seeing Munroe appear on Fox News, a School District director, John Gamble, told his colleagues he was "confident [the Board] [was] doing the right thing." To remove any doubt about what "doing the right thing" refers to, we need only look at the bottom of Gamble's email, which makes clear it was sent in response to the "termination plan" Superintendent N. Robert Laws had circulated. At the end of that email, Laws too revealed how he felt about Munroe's media tour, see id. ("I will not be drug [sic] into the mud of TV news entertainment ․"), and that "Fox news ha [d] called [him] 6 times ․ to appear on the Justice with Jeannie [sic] show," id.

Against this background, I am persuaded that Munroe has, at a minimum, created a jury question about whether her media interviews factored into the discharge decision. Nothing the School District has argued convinces me otherwise, i.e., that the causal connection "question is so free from doubt as to justify taking it from the jury." Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir.2004) (quoting Naucke v. City of Park Hills, 284 F.3d 923, 928 (8th Cir.2002)). Despite its best attempt to shine a light on Munroe's purported poor performance as the reason for her firing, the School District's argument is unpersuasive if not disingenuous. A brief reiteration of Munroe's employment history at CB East is in order.

After being hired to teach English in 2006, Munroe was awarded tenure only four years later in March 2010, on the recommendation of Principal Lucabaugh (who also wrote of Munroe in June 2008 that "[s]he is a consummate educator with a sparkling future"). During that time, her teaching record was pristine-she received the highest mark available ("satisfactory") in eight consecutive performance evaluations. But then, on June 15, 2011-only a few months after her blog became known and she appeared on the media to defend her position in response to Lucabaugh's televised announcement-Munroe received her first unsatisfactory evaluation. Among the concerns noted was Munroe's sudden "inability to connect to ․ students and make them feel that she cares about them" as well as the "overuse of vocabulary assignments and vocabulary assessments" and "inappropriate use of a 'nanny cam' during teaching hours." Munroe's troubles carried over to the next semester when school officials began dropping into her classes unannounced. The drop-ins, according to Munroe, became "calculated and unrelenting," which led to her bosses "nitpicking everything [ ][she] did." Could anyone blame Munroe for believing they "had an agenda?"

Seven unannounced observations later, Munroe received her second unsatisfactory evaluation on January 20, 2012. Not unexpectedly, she received a third and final unsatisfactory evaluation on June 1, which highlighted her continued performance issues and failure to submit lesson plans using the "Central Bucks School District designed template"-the latter a requirement to which she was never held until she began receiving unsatisfactory evaluations. Termination inevitably followed in June 2012.

In short, I have no doubt the School District was well aware that firing Munroe for her blog posts and media tour would land it in constitutional hot water. More than enough evidence suggests that firing her on performance grounds was a pretext for its real reason-she had spoken out to friends on a blog, it became public, School District officials were upset and proposed her termination, they decided to wait, the once-sterling evaluations of Munroe immediately became negative, and she was fired. The bottom line: too many signs suggest this was all a set-up that a jury needs to sort out. I thus respectfully dissent.

COWEN, Circuit Judge.

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FindLaw's United States Third Circuit case and opinions.

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Natalie MUNROE, Appellant, v. CENTRAL BUCKS SCHOOL DISTRICT; N. Robert Laws, Superintendent of Schools Central Bucks School District; Abram Lucabaugh, Principal Central Bucks High School East. Before AMBRO and COWEN, Circuit Judges RESTANI*, Judge. Stanley B. Cheiken, Esq. (Argued), Jenkintown, PA, Counsel for Appellant. Kimberly A. Boyer-Cohen, Esq.

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U.S. Const. Amend. I
The first amendment to the Bill of Rights outlines freedoms of US citizens regarding speech and expression.

The 1st amendment lists all citizens have the right to freedom of expression, speech, religion, and assembly

This piece of constitutional law is important when considering educator conduct on social media

In many cases, social media is protected under the 1st amendment, however other educator laws take precedence over this law

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On September 25, 1789, the First Congress of the United States proposed 12 amendments to the Constitution. The 1789 Joint Resolution of Congress proposing the amendments is on display in the Rotunda in the National Archives Museum. Ten of the proposed 12 amendments were ratified by three-fourths of the state legislatures on December 15, 1791. The ratified Articles (Articles 3-12) constitute the first 10 amendments of the Constitution, or the U.S. Bill of Rights. In 1992, 203 years after it was proposed, Article 2 was ratified as the 27th Amendment to the Constitution. Article 1 was never ratified.

Transcription of the 1789 Joint Resolution of Congress Proposing 12 Amendments to the U.S. Constitution

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Article the first... After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second... No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Article the third... Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article the fourth... A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Article the fifth... No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article the sixth... The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article the seventh... No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article the eighth... In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Article the ninth... In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Article the tenth... Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article the eleventh... The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article the twelfth... The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
ATTEST,
Frederick Augustus Muhlenberg, Speaker of the House of Representatives
John Adams, Vice-President of the United States, and President of the Senate
John Beckley, Clerk of the House of Representatives.
Sam. A Otis Secretary of the Senate
Amendments 11-27
The U.S. Bill of Rights

Note: The following text is a transcription of the first ten amendments to the Constitution in their original form. These amendments were ratified December 15, 1791, and form what is known as the "Bill of Rights."

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Amendments 11-27
Note: The capitalization and punctuation in this version is from the enrolled original of the Joint Resolution of Congress proposing the Bill of Rights, which is on permanent display in the Rotunda of the National Archives Building, Washington, D.C.
Back to Main Bill of Rights Page

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get-content name="print-page-left" include-tag="false" /] Note: The following text is a transcription of the enrolled original of the Joint Resolution of Congress proposing the Bill of Rights, which is on permanent display in the Rotunda at the National Archives Museum. The spelling and punctuation reflects the original.

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This guide written by Larry Magid and Kerry Gallagher offers educators several helpful guidelines related to social media use as an educator. Social media use can be a gray area for educators because it falls on the line between freedom of speech and educator ethics, so this guide is a great tool for educators to reference when in doubt.

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Social media has become ubiquitous. As of January 2014, about three quarters of online American adults were using some form of social media, according to Pew Research. Among young adults and teens, the numbers are even higher. Without a doubt, the vast majority of your students - at least those in middle school or higher - have social media accounts.

Many educators are also on social media both for personal and professional use and, for the most part, that's great. From a professional standpoint it can enhance your network of contacts, engage you in important discussions, extend your own learning and even provide a platform for class projects. As for personal use, well, educators have lives, families, friends and interests just like everyone else so, naturally, many are drawn to social networking as a way to connect to the people they care about.
Appropriate use
But educators also have responsibilities and concerns that could, perhaps, cause them to think twice about how they use social media. What is appropriate to post? Who should you interact with? Should you "friend," follow or make your posts accessible to your students? How about parents and colleagues? Are there certain types of posts to avoid? And how can you control who has access to what you post?

Social media services and apps can also be used as educational tools, but there are important issues to consider including privacy, appropriate content, security and your comfort level with the apps and services. Often, the best authorities on what is useful are your students themselves. Find out what tools they're using (new ones pop up all the time) and check them out. You might find them useful, or maybe not. But having an open mind about what your students are using and recommending not only opens you up to new horizons, but shows that you respect your students and care about what is important to them.

As is often the case, there are not always right or wrong answers to these and other important questions about social media use, but they are issues that you need to think about and, perhaps, discuss with parents, students and colleagues.

One thing we can say for sure is that social media is not something to be afraid of. We're not saying it's for everyone, but we are saying that - as with any powerful tools - there are some amazing and positive aspects to it as well as reasons to be careful.

This Educator's Guide to Social Media is designed to provide a framework for thinking about how to best use social media.
Protecting your privacy on social media
There are ways you can limit who sees what you post but, if you are really worried about something getting into the wrong hands, the safest way to avoid that is to not post it on social media. For that matter, you might also avoid sending it via email or text since anything that's digital can be copied and pasted deliberately or by accident. But these are extreme cases, such as material that would be embarrassing or get you or others into trouble. For the most part, learning how to limit the audience of what you post can provide you with a reasonable amount of privacy.

So, the first thing you should do before using any social media service is to understand its privacy settings and norms. Almost all services have some controls over who can see what you post. Some services, including Facebook, allow you to control the audience for each post. Others, including Twitter, have universal settings that control all of your posts.

Twitter allows you to create a profile where you can pre-approve everyone who follows you, but the "norm" on Twitter is to not limit who can follow you, while on Facebook the norm is to limit posts to friends or friends of friends though there are some people who opt to post at least some updates to the public - knowing that anyone can see what they post. What's important is that you consider the settings and think about how to use them before you post. Visit ConnectSafely.org/educatorsguideextra for details about privacy settings for the major social media platforms.
Interacting with students
There is no hard-and-fast rule about interacting with students on social media, but we do have some recommendations. First, you need to find out if your district has rules or policies and, if so, be sure to comply with them. It's generally not a good idea to socialize with your students through social media but there are some teachers who use social media to discuss classroom projects, resources for students or examples of great student work. On Facebook, for example, teachers can set up Pages or Groups that their students can access without their having to "friend" their students. It's also possible to set up Groups of students and send class-related messages to the group without sharing your other posts.

Because the Twitter norm is public posting, it is possible that your students might see your tweets, unless you use Twitter's privacy settings to pre-approve all your followers and are careful to not allow students to follow you. So, if you do have a public Twitter account, be careful not to tweet anything that you wouldn't want students to see.

Just as some educators have personal Facebook profiles and professional pages, some have both personal and professional Twitter accounts. The professional account can be used to post links to assignments on Twitter or photos of excellent student work. This means that the professional accounts often have few privacy restrictions and any student or parent could easily find and follow it.

We're not saying that educators must have separate personal and professional accounts. If you want to have only one Twitter account that is used mostly professionally, go for it. There is nothing wrong with posting an image of your family or a quote from a favorite movie now and then for your students and colleagues to see. Every educator has a different comfort level with personal sharing in the classroom and in faculty meeting rooms. Consider your comfort level when making social media decisions and do what makes sense to you. Remember, you are the same person online as you are in your classroom.
Protecting student privacy
Regardless of whether your account is public or private, teachers must be careful about posting photos of students if parents have not signed the school's media release documents. For our youngest students, it might be best practice to keep the account private and tell parents they will need to request access and get approval before having the ability to view. For middle and high school students, parents who have signed the waivers are often thrilled to see the images of their students engaged in learning posted online.

These same guidelines hold true for Instagram. The service can be used in class to showcase students' work, document class activities or share educational content. The same could be true for Snapchat, Google Photos, Flickr and other services that allow you to post and share images. Again, be sure parents have given permission if students appear in the images. In addition to parental permission, make sure it's OK with the students as well. Some of them might be "having a bad hair day."

When deciding whether to friend or follow students, think about their space. It's not so much a privacy issue if they chose to post publicly or share with you but it's important to respect students' personal space. Just as you probably wouldn't hang out with them at a mall, you might not want to hang out with them online in their own spaces. Again, pages or spaces dedicated to education are an exception.

When discussing social media in class, talk with your students about their privacy settings and who will see their schoolwork posted. You might consider asking them how they protect their own privacy on social media - many kids are a lot more privacy conscious than adults give them credit for.
Interacting with parents and colleagues
It's fairly common to use social media to interact with professional colleagues and parents. Be aware of your audience and only post what you think is appropriate, and use tools to limit your audience, as described above. LinkedIn is a great option for connecting with other educators and, in some cases, parents because it's designed for professional networking. You'll find links for privacy settings on major services at ConnectSafely.org/educatorsguideextra.

With parents remember that their primary concern is their child. When posting an image or idea they can see, keep that in mind. Parents react positively to encouragement and uplifting posts from the classroom.

Also, even though educators have a right to their personal lives and opinions, it's important to remember that you are something of a public figure, at least as far as parents are concerned. How you are perceived - even when you're not at work - can have an impact on your career and how people think about you. That doesn't mean that you should shy away from posting pictures or comments, but it does mean that people may judge you based on how you appear or what opinions you express. We're not saying that you can't ever express an opinion, but do consider how it might affect how people in your community perceive you.

While still maintaining professionalism, interactions with colleagues on social media might be more informal than with parents. With colleagues we could feel more willing to share a struggle and appear a bit vulnerable in order to ask for advice. Remember, though, that what you share with colleagues could possibly be viewed by parents or students depending on your privacy settings. And even privacy settings are not the end-all-be-all, since private comments or posts can easily be copied or captured via a screenshot and circulated elsewhere.
Teaching your students about social media safety, privacy, security and digital literacy
While the subject of "Internet safety" may seem daunting, it's not really all that complicated or, for that matter, much different than what you learned about when you were a student. Much of what young people (and adults too) need to know about protecting themselves online can be summarized in four words: "Think before you post." Add to that "be kind and respectful" and you've pretty much covered the basics of "digital citizenship" in social media. OK, it's a little more than that, but you get our drift.

There are plenty of programs designed to teach digital citizenship and Internet safety in schools. While some schools have set aside dedicated time, and in some cases dedicated staff, for these subjects, we think that the concepts should be woven into the entire curriculum. You can call it "digital literacy" if you want, but in the 21st century, knowing how to safely use digital tools is just literacy. Your students don't distinguish between their digital lives and the rest of their lives - looking things up online, texting and accessing apps is just part of what they do as they go about their day. And while there may be some value in having an assembly or class on safe use of digital tools, there is a lot to be said for integrating it into everything you teach. Just as educators use "teachable moments" to talk about treating others well and social responsibility, educators should take advantage of digital teachable moments as well. Digital citizenship is still citizenship.

Students also need to understand the importance of critical thinking and how to evaluate sources. The Internet makes it very easy to find just about anything, but just because they find something on Twitter or Facebook or through search, doesn't necessarily mean that it's from a credible source. Students (and teachers too) must take responsibility for what they post on social media. It's not uncommon to spread urban myths - "facts" or stories that are simply not true - in social media simply because some people never bother to verify if they are true (snopes.com and factcheck.org are among several sites that can help determine what is or isn't true). But you don't have to be teaching about "the Internet" to make this point. Critical thinking and knowing how to find reliable and accurate information are relevant to all subjects.
Myths about social media
While it's important for educators to teach the safe use of social media and use it safely themselves, it's also important to not pass on inaccurate information about social media. For example, there have been media reports about the dangers of Internet predators and lots of stories about cyberbullying. But, even though these dangers are real, it's important to put them into context. In an article in The American Psychologist, experts from the Crimes Against Children Research Center, which is funded by the Department of Justice, recently wrote, "The publicity about online 'predators' who prey on naive children using trickery and violence is largely inaccurate." And even though cyberbullying is a real problem, it's not an epidemic as some claim, according to most scholars who study the issue. There is also a lot of misinformation about "Facebook depression" and conflicting research about the dangers of too much screen time.

This is not to say that all of these issues aren't concerns, but it's important to put them into context and use credible sources when discussing them. Critical thinking isn't just for students, we adults must practice it ourselves.
Protecting yourself against harassment
Fortunately, it's very rare, but there are cases where teachers have been harassed or cyber-bullied by students or former students. First, you need to distinguish between harassment and a student's right to express an opinion. While you might not like what they're saying, there is little you can do to prevent students from sharing their opinions about you, though if you see something about yourself that you don't like, you can certainly start by speaking with the student, explaining why the comments are hurtful and asking if they will take them down. If the comments are abusive, harassing or factually inaccurate or if they are impersonating you, you may have some recourse through the social media service itself, your school district or union or - in extreme cases - law enforcement. If the comments are posted on a social media site, take a look at that site's terms of service and, if you believe the content it is in violation, report it immediately to the site's operators ( here's a link to reporting pages for major services). Sites generally do not permit impersonation, which protects you if someone is posting as if they are you. Facebook requires people to use their real names and therefore prohibits anonymous accounts or accounts with fake names. You may have other legal remedies, so consider speaking with an attorney.
Dealing with abusive or dangerous student online content
While schools don't generally have control over their students' activities outside of school, there have been cases where schools disciplined students for online activities including cyberbullying, impersonation and harassment of other students or staff. As a general principle, if the activities interfere with a student's' ability to learn - even if they occur away from school and outside of school time - schools may have the authority to intervene. These issues can be tricky and are not always black and white, but if you encounter anything online that you feel needs to be addressed by the school, definitely check with district or school officials to see if there is anything that can be done. Of course, if you see anything online that indicates that a student is in danger of hurting themselves or others, you should contact the site operator, local law enforcement and district administration immediately and consider reaching out to the student or the student's parents. ConnectSafely's Resources for Youth In Crisis lists several helplines and hotlines that may be able to assist you.
Professional learning with social media
"Connected educators," as they are sometimes called, regularly share, find resources, and interact with other education professionals by way of social media. There are many social media tools, and each has its own strengths. Some are media-rich and robustly show images and videos. Others are focused on short bites of text or links to outside resources. Connected educators who are experienced and comfortable on social media tend to use many tools over the course of a single day because of these differences. If you are just starting out, you do not need to dive into all tools at once. Here's a quick run-down to help figure out which tool to try, and to get the most out of your social media interactions.
Finding and curating your professional learning network
In a professional learning network (PLN), educators can share ideas and learn from the expertise of others beyond the walls of their school. There are a few tactics for finding people who would fit well in your PLN. Start by following your colleagues who are already connected educators. Then talk to them about who they follow. When they recommend a person or social media account, ask them to be specific about how they've interacted and what they've learned. Another tactic is to follow the authors and bloggers whose writing you have read and admire. You can also search for speakers or consultants you've worked with in previous professional development situations. Once you are ready to grow your PLN, start participating on the conversations you see on Twitter. This is often how you find new people to follow, and therefore new ideas and perspectives to be learned. It is likely the people you follow on Twitter already converse about topics and ideas that will also interest you.

When you first start building your PLN, it's tempting to follow or friend everyone you can think of but it might be better to move a bit slowly at first. Eventually, you might reach a point when you are following too many people for you to keep up with, or some people whose posts simply aren't all that interesting. It's OK to unfollow or unfriend someone if you no longer want to hear from them. Neither Twitter nor Facebook will notify someone that you've unfollowed them. Also, Facebook has ways to minimize how much you hear from people - you can, for example, designate a friend as "an acquaintance," which means you'll hear about major life changes but not everything they post. Twitter has a mute feature that lets you remove an account's tweets from your timeline without unfollowing or blocking that account. Curating your PLN in this way does not violate social media norms, but if you unfollow or unfriend someone you know in person, be prepared to explain your actions.
Sharing and finding articles and resources
If you have a great lesson experience to share or if you are looking for ideas to revamp your classroom practice, Twitter is the place to go. Start by finding users who have similar interests and click on the links to articles, resources, and lesson plans that they share. "Favorite" or retweet the ones you like. Be sure to share your successes and questions, too. Your tweets are limited to 140 characters. This forces users to be succinct and thoughtful when posting, and also makes it easier for users to quickly read through their feed. The more you put out there, the more you will get back.

Google+ is the place to find links to articles and resources, too. Those posts can be liked, shared, or you can add to a comment stream similar to Facebook. There is the added feature of Google+ Groups. You can join groups of educators from your region, or with your interests. These groups tend to focus their posts to topics related to the purpose of the membership, and might be an easier way to find what you need. The conversation on Google+ also doesn't tend to move as fast as on Twitter.

LinkedIn is growing as a location for publishing and finding articles. Although its primary purpose is still professional networking and posting a resume, more professionals are also blogging on the platform or posting links to their blogs. If you haven't visited LinkedIn for a while, it is worth a peek.

Our website has links to additional resources including popular education blogs and apps.
Sharing and finding media
Sometimes educators are looking for infographics, photographs, artwork, or video clips to use in the classroom. Pinterest boards require each pin - the term for a post on that platform - to have an associated image. Users create and name pinboards full of images, which are linked to their sources. By clicking these images, elementary educators can find excellent classroom decoration ideas and organizational strategies. Teachers who focus on particular subject areas can also find graphic organizers, primary source images, and lessons. As you find multiple resources on a single topic, Pinterest can be a place where you categorize and save those resources to easily find later.

Instagram users can post images or 3-15 second videos. Then you can add a caption or description for the media you post. These are usually not lesson ideas, though. Instead, Instagram is a place for you to see other educators interacting at conferences or events that you might not be able to attend. Posting to Instagram is only possible on the mobile app, but Instagram is viewable on a computer browser. It's a great way to keep up with your new connections from Twitter, Google+, and elsewhere.

For rich video content, YouTube is the place to go. Users have to be good at search terms to find what they need, but once you get the hang of searching on YouTube it can be a gold mine. Varying content delivery by using short, engaging video clips is an effective teaching strategy. Once you find a YouTube channel that has content that fits your curriculum or philosophy, follow it so that you can get notifications whenever new videos are posted. Also, YouTube videos can be "embedded" into your own blogs, Facebook posts and tweets so it's easy to share them with colleagues or students.

Edugblogger has an excellent article on how to find and use media without violating copyright law.
Getting social
Since social media is meant to be a social experience, consider how you want to interact with your fellow educators. If you are looking to have an experience like group messaging -short typed responses between many people - Twitter chats will meet your needs. Find the hashtag (#) that fits your interests and then meet others on Twitter at the designated time for a discussion based on pre-made prompts. Usually chats are an hour long, happen weekly and the prompts and moderators change. But sometimes they are shorter or longer and sometimes they happen daily or monthly. These are fast-paced and can be overwhelming for newbies, but also a great way to build relationships with other educators from around the world.

If you want to have a more personal conversation, consider Voxer. It is a walkie-talkie type experience that allows you to either leave voice messages or have a live voice conversation. Text, images, and links can be added to the conversation as well. But since the primary form of interaction is via voice recording, most educators find it more engaging and personal than other social networks. In fact, most Voxer interaction are a continuation of Twitter chats when people want to have a more rich discussion.

If a voice conversation isn't enough and you want a video chat, Google+ has a feature called Google Hangouts. Up to ten people from remote locations can participate in the same video chat at the same time. These are ideal for planning upcoming events or being part of a webinar.

There is also a way to combine Google Hangouts with the sharing power of YouTube. Hangouts on Air are video chats, using the Google+ platform, that are broadcast live publicly on YouTube. So, up to ten people can participate in the chat, but it can be broadcast to an unlimited audience online. These are becoming a popular way to share and post webinars. The video stays online after the broadcast is over so those who missed it can watch it any time.

Where does Facebook fit in all of this? It is a place to share links, short typed messages, images, video clips, and to have direct message conversations. And since many educators are already on Facebook to keep in touch with family and friends, some choose to post links to education resources in their feed right along with their personal posts. Others choose to keep them separate. Educators who are also speakers or writers can create separate public figure pages where they post links to a speaking event website or to articles they publish.
How to use social media in the classroom
It is possible to include social media within lessons to promote collaboration among your students and with the outside world. There are some excellent examples of teachers leveraging social media to promote learning in their classes, but be careful not to require your students to be on social media in order to participate in the learning experience. Some may not have access to a computer or smartphone, and just as you have the prerogative to join social media, or not, and how much to share, so should your students. Students can work in mixed groups in which some members are comfortable with sharing. The students who are not comfortable should be able to contribute to the learning without being required to post. Also, students under 13 are not allowed to use most social media services. Of course, many do despite the rules, but be aware that the Children's Online Privacy Protection Act (COPPA) limits the ability of children under 13 to use services that collect personal information. For more on COPPA and other student privacy laws, see ConnectSafely's A Parents' Guide to Student Data Privacy.
Connecting students with experts
After students learn the basics about a topic, teachers can use their online connections to bring an expert to meet their students virtually. It is not uncommon for teachers to set up video conferences using tools like Google Hangouts or Skype, so that students can meet and talk with book authors, scientists, or people who lived through historical events like the Holocaust. It is free, as compared to expensive travel arrangements, and the students feel a deeper connection with the content when they can interact with a person who experienced or produced it.
Student-produced media
As project-based learning has gained popularity, students are producing their own media to demonstrate their learning. Sometimes they might be especially proud of what they've created and want to share it. This is possible with YouTube, blogs, and other social media platforms. Talk with students about checking their work to make sure they have credited the sources of both information and images before they post. In addition, be sure to explain to them how to share their work using multiple social media services. For example, a student-produced documentary could be posted on YouTube and embedded in a blog post, but a link could also be shared on Twitter and Facebook to gain more viewers if the student is especially proud.

A note about YouTube: Although it prohibits pornography and certain other types of material, there may be content on the service that you might consider to be inappropriate for your students. One way to mitigate this is to turn on restricted mode, which filters out content that has been flagged by users but, as YouTube explains on the site, "No filter is 100% accurate, but it should help you avoid most inappropriate content." Restricted mode applies only to the browser on whatever machines you've set it on and works independently of any other filters the school might have in place.
Homework and extra credit
Teachers with Twitter and Instagram accounts dedicated to their classes often use them to send out reminders about upcoming assignments or extra credit opportunities. Students enjoy liking or commenting on a teacher's Instagram posts to show the teacher they are paying attention. They also like to retweet a teacher's tweet to share with their classmates as reminders. Remember, though, that not all students will be comfortable with using social media so those platforms cannot be the only place assignments are posted. An additional benefit to assignment reminders on social media is that they can reach parents as well as students, adding a new avenue for school and home communications.
Class hashtags
Most social media services - Facebook, Google+, Instagram, Twitter, etc. - recognize hashtags as a way to label and search for posts that are focused on particular topics. Teachers can create a custom hashtag for their classes. Once the hashtag is shared with parents and students, it can serve as an alternative for those who do not want to follow or friend the teacher. Simply add the hashtag (ex: #gallagherhistory) to all posts that contain resources, reminders, excellent student work, or anything related to the class. Once you talk about appropriate use of the hashtag with students, you can welcome them to use it when they post about their learning or about their work from your class. Students can post pictures during a field trip to record their learning, links to videos or articles they happen across that relate to your curriculum, or questions they might want to pose to the teacher or classmates about an ongoing assignment. This practice can really break down the walls of your classroom and allow the learning to continue beyond the allotted class period or school day. It cannot be a required part of class, but it can be invigorating for students to know their teacher cares enough to continue the discussion on a platform they are already using.
Anonymous isn't synonymous with ominous
Some of your students may use services like Yik Yak, Ask.fm and Whisper that allow users to post anonymously. There has been a lot of media attention paid to the downsides of these apps and, indeed, there have been instances of bullying and harassment, exacerbated by the ability to post without having to reveal your name or even a username associated with the person who is posting. Yet these apps have some positive uses as well, including the ability to explore subjects such as politics, health, sexual orientation or religion without having to reveal your identity. If you or your students are using any of these apps, you might want to take a look at ConnectSafely's Tips for Safe and Civil Use of Anonymous Apps.
Ephemeral photos and live video
One of the most popular messaging apps among teens is Snapchat. In its early days there was some misconception that messages and images sent via Snapchat could be viewed once and would disappear forever. While most teens now know this is not necessarily the case (there are ways to capture the screen), they still use it as their preferred messaging platform. One reason many young people like Snapchat is because it is "in the present." It's not about taking pictures to look at later in life but to experience them in the moment and then move on. It's as if photos are part of a conversation rather than as fodder for memories.

Among other things, Snapchat allows users to send both texts and edited or captioned images and videos in the same message stream. You can also piece a day's worth of snaps together into a "story" that's presented in chronological order. There are risks and benefits to this service and much more to learn in ConnectSafely's A Parents' Guide to Snapchat.
Live video and parental permission
Some of the newest social media apps allow users to live stream video to followers. Meerkat and Periscope (which is owned by Twitter) are the most popular. It is important to remember that when parents sign the school media releases they generally believe it covers photos of a child, but live streams are a brand-new arena. Many teachers have received positive feedback by sharing their discussion and teaching methods live from their classrooms. However, both parents and students should be informed in advance about the purpose and audience of any broadcast. While streaming from their classrooms, teachers usually make sure student faces are not on the live stream and the smartphone is strategically filming from behind them as they share their learning. Others choose to live stream from their classrooms when no students are present. Videos can be saved from Meerkat and Periscope live streams and then uploaded to YouTube for future viewing.
Closing thoughts for educators
Social media is part of the world we live in and, even if you don't use it, chances are that it affects you simply because many of the people around you - including students, colleagues and parents - are using it. That doesn't mean that you have to use it and you certainly don't have to use every service and app out there or spend a great deal of time on social media. You should, however, be aware of the services and apps your students are using.

How you approach it, who you friend or follow, how often (if ever) you post and how often you check in is completely up to you and, as with lots of good things in life, there may be times when you need a break from social media.

Keep in mind that, when used thoughtfully, social media can provide opportunities for professional growth, enhanced home-school communication, and conversations that allow learning to continue beyond allotted class times. If and when you choose to get started - or start over - with social media remember that general professional and personal rules of etiquette hold true online as they do in person.
About the authors Kerry Gallagher is a Technology Integration Specialist at St. John's Prep in Danvers, Massachusetts, a 1:1 iPad school serving grades 6-12. For 13 years she taught middle school and high-school history where her classes collaborated, created and published their ideas in a paperless environment. Kerry has a Juris Doctor from Massachusetts School of Law. Larry Magid is CEO and co-founder of ConnectSafely.org and a technology journalist with CBS News, San Jose Mercury News and other outlets and for 19 years a syndicated columnist for the Los Angeles Times. He has a Doctorate of Education (Ed.D.) from the University of Massachusetts at Amherst.

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The Educator's Guide to Social Media | ConnectSafely

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Social media has become ubiquitous. As of January 2014, about three quarters of online American adults were using some form of social media, according to Pew Research. Among young adults and teens, the numbers are even higher. Without a doubt, the vast majority of your students - at least those in middle school or higher - have social media accounts.

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Educators are role models on their campuses as well as in their communities, so professionalism on social media platforms is important. Below are several recommendations for educators to follow when posting content or using social media.

Always read your districts employee handbook and what your specific district outlines as social media expectations

Keep all social media accounts set to private in order to better monitor who has access to those accounts

Utilize monitored services to communicate with students, such as email or Remind

When you are unsure of a post on your social media accounts, reach out to your campus administration team for guidance

Always seek written approval for any social media posts regarding students/student information

Avoid posting to social media about information regarding your career or campus - don't post complaints or concerns about your campus, instead speak to your district leadership teams

If something would not be appropriate to discuss in the classroom, do not post it to your public social media accounts

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China Spring ISD. (2020). Employee Handbook. China Spring, TX.

31 Tex. Admin. Code § 247.2 (2018).

Magid, L., & Gallagher, K. (2020, August 17). The Educator's Guide to Social Media. Retrieved from https://www.connectsafely.org/eduguide/

Munroe v. Central Bucks School District, 805 F.3d 454 (3d Cir. 2015).

Tex. Educ. Code § 38.027

U.S. Const. Amend. I

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31 Tex. Admin. Code § 247.2 (2018).
All public school districts in the state of Texas require teachers and educators to abide by the Texas Educators' Code of Ethics.

Standard 1.9 states that teachers should not make threatening remarks towards their campus, students, or peers

This ethical expectation can be compared to the example of Georgia Clark, who tweeted to Donald Trump exposes illegal students at her campus

Clark's tweets serve as an example of an item that could be in breach of the ethical expectation on social media

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Enforceable Standards.
(1) Professional Ethical Conduct, Practices and Performance. (A) Standard 1.1. The educator shall not intentionally, knowingly, or recklessly engage in deceptive practices regarding official policies of the school district, educational institution, educator preparation program, the Texas Education Agency, or the State Board for Educator Certification (SBEC) and its certification process. (B) Standard 1.2. The educator shall not intentionally, knowingly, or recklessly misappropriate, divert, or use monies, personnel, property, or equipment committed to his or her charge for personal gain or advantage. (C) Standard 1.3. The educator shall not submit fraudulent requests for reimbursement, expenses, or pay. (D) Standard 1.4. The educator shall not use institutional or professional privileges for personal or partisan advantage. (E) Standard 1.5. The educator shall neither accept nor offer gratuities, gifts, or favors that impair professional judgment or that are used to obtain special advantage. This standard shall not restrict the acceptance of gifts or tokens offered and accepted openly from students, parents of students, or other persons or organizations in recognition or appreciation of service. (F) Standard 1.6. The educator shall not falsify records, or direct or coerce others to do so. (G) Standard 1.7. The educator shall comply with state regulations, written local school board policies, and other state and federal laws. (H) Standard 1.8. The educator shall apply for, accept, offer, or assign a position or a responsibility on the basis of professional qualifications. (I) Standard 1.9. The educator shall not make threats of violence against school district employees, school board members, students, or parents of students. (J) Standard 1.10. The educator shall be of good moral character and be worthy to instruct or supervise the youth of this state. (K) Standard 1.11. The educator shall not intentionally, knowingly, or recklessly misrepresent his or her employment history, criminal history, and/or disciplinary record when applying for subsequent employment. (L) Standard 1.12. The educator shall refrain from the illegal use, abuse, or distribution of controlled substances, prescription drugs, and toxic inhalants. (M) Standard 1.13. The educator shall not be under the influence of alcohol or consume alcoholic beverages on school property or during school activities when students are present. (2) Ethical Conduct Toward Professional Colleagues. (A) Standard 2.1. The educator shall not reveal confidential health or personnel information concerning colleagues unless disclosure serves lawful professional purposes or is required by law. (B) Standard 2.2. The educator shall not harm others by knowingly making false statements about a colleague or the school system. (C) Standard 2.3. The educator shall adhere to written local school board policies and state and federal laws regarding the hiring, evaluation, and dismissal of personnel. (D) Standard 2.4. The educator shall not interfere with a colleague's exercise of political, professional, or citizenship rights and responsibilities. (E) Standard 2.5. The educator shall not discriminate against or coerce a colleague on the basis of race, color, religion, national origin, age, gender, disability, family status, or sexual orientation. (F) Standard 2.6. The educator shall not use coercive means or promise of special treatment in order to influence professional decisions or colleagues. (G) Standard 2.7. The educator shall not retaliate against any individual who has filed a complaint with the SBEC or who provides information for a disciplinary investigation or proceeding under this chapter. (H) Standard 2.8. The educator shall not intentionally or knowingly subject a colleague to sexual harassment. (3) Ethical Conduct Toward Students. (A) Standard 3.1. The educator shall not reveal confidential information concerning students unless disclosure serves lawful professional purposes or is required by law. (B) Standard 3.2. The educator shall not intentionally, knowingly, or recklessly treat a student or minor in a manner that adversely affects or endangers the learning, physical health, mental health, or safety of the student or minor. (C) Standard 3.3. The educator shall not intentionally, knowingly, or recklessly misrepresent facts regarding a student. (D) Standard 3.4. The educator shall not exclude a student from participation in a program, deny benefits to a student, or grant an advantage to a student on the basis of race, color, gender, disability, national origin, religion, family status, or sexual orientation. (E) Standard 3.5. The educator shall not intentionally, knowingly, or recklessly engage in physical mistreatment, neglect, or abuse of a student or minor. (F) Standard 3.6. The educator shall not solicit or engage in sexual conduct or a romantic relationship with a student or minor. (G) Standard 3.7. The educator shall not furnish alcohol or illegal/unauthorized drugs to any person under 21 years of age unless the educator is a parent or guardian of that child or knowingly allow any person under 21 years of age unless the educator is a parent or guardian of that child to consume alcohol or illegal/unauthorized drugs in the presence of the educator. (H) Standard 3.8. The educator shall maintain appropriate professional educator-student relationships and boundaries based on a reasonably prudent educator standard. (I) Standard 3.9. The educator shall refrain from inappropriate communication with a student or minor, including, but not limited to, electronic communication such as cell phone, text messaging, email, instant messaging, blogging, or other social network communication. Factors that may be considered in assessing whether the communication is inappropriate include, but are not limited to: (i) the nature, purpose, timing, and amount of the communication; (ii) the subject matter of the communication; (iii) whether the communication was made openly, or the educator attempted to conceal the communication; (iv) whether the communication could be reasonably interpreted as soliciting sexual contact or a romantic relationship; (v) whether the communication was sexually explicit; and (vi) whether the communication involved discussion(s) of the physical or sexual attractiveness or the sexual history, activities, preferences, or fantasies of either the educator or the student.