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I am the 4th-5th grade elementary school counselor. The topic I chose is to work with for student success is the 504 requirements that are implemented into a school setting with students who have a learning disability such as: ADHD, ADD, Dyslexia, or shows signs of reading difficulty. My audience I will be focusing on training the Underwood Elementary campus which are 4th-5th grade teachers. This training will consist of informing the teacher's on the IEP plan that will be given to them and implemented into the child's educational learning environment. I chose this topic of study because this plan is individually designed for each child depending on their needs and weaknesses. This plan will help the child become successful in school and will also help the teacher better understand the tools the child needs to achieve their goals.

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The counselor's main role at the elementary level is being the 504 coordinator for that campus. Therefore, in order to meet the required needs of a student the school counselor is in charge of providing services for any child who is in the dyslexic program, has ADHD, reading difficulty, and etc. The school counselor then assesses the child and meets with a committee in order to put an IEP (Individual Education Plan) into place for each child.
1. The 504 process begins when a child has been referred by a parent, teacher, or doctor
2. Once the student has been identified and then the coordinator requests work samples or a doctor's note in order to determine the needs for the child
3. When that is collected those who have an educational interest in the child meet and discuss accommodations that need to be implemented to help the child be successful.
The 504 IEP's are vital when it comes to student success in the classroom. By law, the 504 coordinator is to put a plan into place and once the committee meets and agrees on a plan, the teacher is to utilize the plan and follow the individualized objective depending on the students needs.
Interviewed: Traci Jordan, School Counselor, Underwood Elementary.

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Our mission is to provide a comprehensive guidance program based on the Six Pillars of Character: trustworthiness, respect, responsibility, fairness, caring, and citizenship. We focus on helping students acquire the skills, knowledge, and attitudes needed to become effective students and responsible citizens.

Individual counseling

Group counseling

Classroom guidance

Collaboration with teachers, parents, and administrators

How to see the counselor?

Student self-referral

Staff referral

Parent referral

Covid-19 related resources: Mental Health First Aid resources:

National Suicide Prevention Hotline - 1-800-273-Talk(8255)
24hour/7day/week hotline for anyone feeling sad, hopeless, or suicidal

Crisis Text Line - Text "MHFA" to 741741
24hour/7day/week text line for anyone with mental health challenges Trained counselors available 24hour/7day/week to support youth in crisis

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Our mission is to provide a comprehensive guidance program based on the Six Pillars of Character: trustworthiness, respect, responsibility, fairness, caring, and citizenship. We focus on helping students acquire the skills, knowledge, and attitudes needed to become effective students and responsible citizens.

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This article distinguishes the importance and purpose of the Section 504 services. This article also covers the rights that students with a learning disability have the same opportunities to a free appropriate public education (FAPE).

Association, N. (2020). Know Your Rights: Section 504 of the Rehabilitation Act. Retrieved September 26, 2020, from

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Disability discrimination occurs when an applicant or employee is treated less favorably because of a disability. A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, seeing, hearing, speaking, breathing, or learning). A person is also protected from disability discrimination if they have a record of having such a condition or if they are viewed as having that condition by others.

In the employment context, prohibited discrimination occurs when an individual experiences an adverse employment action due to a protected characteristic (such as a disability). Being terminated, demoted, or not being selected for a promotion is an adverse employment action. The law does not prohibit:

Being treated differently because of personality differences or conflicts;

Being treated differently, including being provided different pay or awards, based on different work performance;

Being disciplined or terminated due to poor performance or conduct;

Being treated poorly by a supervisor who treats all employees poorly1;

Being treated differently based on individual merit, such as talent, skills, and other qualifications.

Unlawful harassment is verbal or physical conduct that denigrates, shows hostility, or shows aversion to a person because of their disability, or their perceived disability, and the conduct:

Has the purpose or effect of creating an intimidating, hostile, or offensive work environment;

Has the purpose or effect of unreasonably interfering with an individual's work performance; or

Otherwise adversely affects an individual's employment opportunities.

Utilizing slurs, negative stereotypes, threats, or negative acts related to a person's disability, even if the person doing such actions claims that he or she is "only joking" can amount to prohibited unlawful harassment. Written or graphic material that denigrates or shows hostility related to a person's disability can also support such a claim. Such materials can include documents and information transmitted via social media, e-mail, text messages, or other electronic media.

An employer has a legal duty to take action to stop harassment and discrimination as soon as management learns of it. In some cases, an employer will be held responsible for harassment committed by a manager or supervisor, even if no one else knew what was occurring.
Accommadating Disabilities at Work
Employers are required to provide reasonable accommodation to an employee or job applicant with a disability. This does not mean the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.

A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.

An employer does not have to provide an accommodation if doing so would cause undue hardship. Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer's size, financial resources, or the type of its operation. An employer may not refuse to provide an accommodation just because it involves some cost.
Asking About Disability
There are strict limits on when an employer may ask job applicants medical questions, to take a medical exam, or to identify a disability. For example, an employer may not ask job applicants to answer medical questions or to take a medical exam before extending a job offer. Employers are also not allowed to ask job applicants if they have a disability (or to ask about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.

Once a person is hired and started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee's request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.
Student Protections
Under Section 504, students in public schools are protected from disability discrimination. This means that disabled students cannot be excluded from receiving the benefits of a public education. Accordingly, public schools are required to provide a "free appropriate public education" (FAPE) to each qualified student with a disability, regardless of the nature or severity of the disability. One way that school districts can comply with the Section 504 FAPE standard is by implementing an Individualized Education Program (IEP) developed in accordance with the Individuals with Disabilities Education Act (IDEA).

Section 504 requires school districts to do the following:

Have procedures to evaluate and place students with disabilities and ensure that students are not misclassified or inappropriately placed;

Engage in the periodic reevaluation of students who have been provided with services and prior to a significant change in placement;

Provide regular or special education and related aids and services so that the educational needs of disabled students are met as adequately as non-disabled students;

Educate disabled students with non-disabled students to the maximum extent that this is appropriate for the students with disabilities;

Have procedures designed to inform parents of school district actions/decisions and to provide parents with a process to challenge those actions/decisions, including notice, an opportunity for parents to review their child's records, an impartial due process hearing, and a review procedure.

Section 504 also requires that school district facilities be accessible to those with disabilities and that students with a disability receive an equal opportunity to participate in athletics and extracurricular activities. In addition, Section 504 prohibits disability-based harassment and bullying by peers that is sufficiently serious to deny or limit a student's ability to participate in or benefit from the school's educational programs (as in, creates a hostile environment). When a school district knows or reasonably should know of possible disability-based harassment, it must take immediate and appropriate steps to investigate what occurred. If harassment did occur, the school district must take prompt and effective steps to end the harassment and prevent the harassment from recurring.

Because discriminatory practices are often only raised and fixed when educators, parents, and others can report such practices freely to school administrators or to the government, Section 504 protects educators against retaliation for reporting discrimination and for their advocacy on behalf of their students.
Retaliation
Section 504 of the Rehabilitation Act provides protection against retaliation. Any individual, disabled or not, is protected from retaliation for exercising his or her rights. Retaliation occurs when an employee is punished for engaging in legally protected activity such as reporting discrimination.

An individual may not be subject to changes in the terms and conditions of his or her employment for:

Inquiring about legal rights under employment laws or the employer's harassment or discrimination policy;

Reporting or complaining about possible discrimination and/or harassment; or

Assisting in a complaint investigation, including providing truthful information about discrimination and/or harassment.

Advocacy Protections
Under Section 504 of the Rehabilitation Act, advocacy on behalf of disabled students on issues related to their civil rights is protected activity and retaliation for such advocacy is prohibited. The federal regulations interpreting Section 504 make clear that the failure to meet the "individual educational needs" of the disabled violates the Rehabilitation Act and that the implementation of appropriate IEP's is one way to abide by the law. Accordingly, an educator who complains about and advocates for students concerning potential IDEA violations is protected under Section 504.

For example, complaints by a speech-language pathologist to school district administrators that the school district was failing to deliver services to special education students by not providing timely and accurate caseload lists was advocacy protected from retaliation under the Rehabilitation Act and the ADA.3 Similarly, a public school psychologist's complaints about potential IDEA violations was found to be activity protected from retaliation under Section 504.4 So too a court found that a special education teacher who was constructively discharged after voicing concerns to her supervisors that the special education services provided did not comply with the law and who filed a complaint with the U.S. Department of Education regarding those concerns was permitted to sue for retaliation under Section 504.5

In order for an educators' activity to be protected against retaliation, an educator must be doing more than assisting or working with special education students. Courts have found that in order for activity to be protected under the ADA and/or Rehabilitation Act, the educator must be advocating for special education students or protesting unlawful activity or discrimination against special education students. So, for instance, an educator making complaints to school district officials regarding IDEA compliance, writing critical letters regarding implementation of IEP's, protesting against discrimination faced by special education students, or expressing support for a co-workers advocacy on behalf of special education students, would all be considered to be engaged in protected activity under federal law. Schools are prohibiting from retaliating against educators for engaging in such behavior. However, an educator logging information to ensure compliance with IDEA reporting requirements or assisting a student during class time, would not constitute protected activity. In addition, courts will only find retaliation if there is proof that the employer knew about the protected activity. Educators who engage in such advocacy should make sure their employers are on notice of their actions. In many cases, this is easily accomplished because the advocacy will be directed to their employer. In others, however, educators who are concerned about retaliation should share their concerns with their supervisors, so as to place their employer on notice of their protected activity.

Prohibited retaliation can include any substantial negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment. For example, it is illegal for an employer to refuse to allow an employee job training because he or she wrote a letter to the school board complaining about the lack of accommodations provided to special education students. Retaliation can also be subtle, such as excluding an employee from work meetings that are essential to his or her employment or significant changes to the work environment designed to punish an employee because he or she advocated for special education students. Minor changes in supervision or work assignments, however, will not support a viable claim of retaliation.

The U.S. Department of Education is responsible for enforcing the regulations on the education of students with disabilities under Section 504. If a school or school district is not complying with the requirements of Section 504 or IDEA in its treatment and education of students with disabilities, any concerned individual (parents, students, or educators) can file a complaint with the U.S. Department of Education, Office of Civil Rights, and they will investigate. As noted above, educators who believe that a school district is not complying with the law and who file a complaint with the Department of Education are protected from retaliation for that advocacy.

Educators who have suffered retaliation as a result of their protected activity can file a complaint regarding that retaliation with either the U.S. Department of Education or the Equal Employment Opportunity Commission. However, it is not necessary to file a retaliation complaint with a government agency before filing a lawsuit under Section 504. Educators who have suffered retaliation can directly file a lawsuit in federal district court alleging retaliation under Section 504.
Combating Harassment and Discrimination: What You Can Do
If you believe that you are being harassed or discriminated against on the basis of your disability, or if you are experiencing retaliation, there are steps you should take to protect your rights. Each of these steps may help stop the mistreatment and improve the work environment. In addition, taking these steps will help you prove your case and preserve your right to sue, if you later decide to file a lawsuit.

Talk to the Offender: While this is not required it may be the best way to stop the offensive behavior.

Document the Behavior: Keep a record of the discriminatory or harassing behavior, including details of time, place, and witnesses. Also document any meetings with managers or Human Resources about the behavior. Keep the documentation in a safe place, like at home.

For retaliation claims: Keep a record of your advocacy on behalf of disabled students or colleagues. Also document any meetings or conversations that demonstrate that your employer or supervisors were on notice of your advocacy.

Complain: Inform your employer as soon as possible that you are experiencing harassment, discrimination, or retaliation. Also contact your union for help. Make sure you are familiar with your employer's policies and procedures for filing a complaint. In many instances, complaints should be directed towards Human Resources or the department that deals with discrimination complaints (such as an Office of Equal Opportunity or an Office of Employee Engagement and Labor Relations) and may involve filling out a complaint form. It is best to make a complaint in writing (keep a copy). Make sure to be as detailed as possible. The more information that you provide, the stronger the complaint is. After a complaint is filed, the employer will investigate your complaint. Make sure to cooperate with any investigation: make yourself available to meet with the investigator and provide him or her with information regarding the discrimination or retaliation.

Consider Contacting an Attorney: Reach out to your state association to find out what legal services may be available to you through the NEA Unified Legal Services Program ("ULSP"). An attorney can provide advice, evaluate the case, and keep you informed of any critical deadlines that must be met in order to proceed with a lawsuit.

Filing an Administrative Complaint: Under Section 504, if you have experienced discrimination, harassment, or retaliation on the basis of your disability or because of your advocacy for those with disabilities at work, you can choose whether to file a complaint with the U.S. Department of Education, Office of Civil Rights, or with the Equal Employment Opportunity Commission (EEOC). You do not have to file an administrative complaint to bring a lawsuit in federal district court under Section 504. However, it is a legal requirement to file an administrative complaint with the EEOC or similar state agency to bring a lawsuit under the Americans with Disabilities Act (ADA). As the ADA and Section 504 both prohibit disability discrimination and retaliation, it is advisable to file an EEOC charge in order to protect your ability to sue on the basis of all applicable federal antidiscrimination laws.

Under the ADA, you have either 180 or 300 days to file an EEOC charge, depending on the allegations and the state in which the offensive behavior occurs. If your state has its own equal employment opportunity laws, then you have 300 days to file an EEOC charge. Otherwise, you have 180 days in which to file.

The clock starts to run when the discriminatory acts occur.

Filing a Lawsuit: If you wish to file an employment discrimination or retaliation lawsuit, you should contact an attorney in your area that specializes in workplace harassment/discrimination cases. As noted above, your local or state affiliate may be able to help you find an attorney.

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Know Your Rights: Section 504 of the Rehabilitation Act | NEA

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This guidance describes the protections that Section 504 provides and outlines the process for raising a complaint of disability discrimination or retaliation in violation of Section 504.

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This current article discusses three traumatic situations that happened with three different students with diverse learning disabilities. With all three of these cases the child went through a traumatic situation which caused complications to their individualized plan put into place for them at school.

Sparks, S. (2019, November 18). Do Distressed Students Have a Right to Trauma-Sensitive Schooling? Retrieved September 26, 2020, from

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Three lawsuits seek to test that idea

In California, Peter was suspended or expelled from school after school after being abused by his mother's boyfriends and taken into foster care.

In Arizona, Stephen lived with his grandparents in deep poverty on the Havasupai reservation and struggled to learn in a severely understaffed school in the middle of Grand Canyon National Park.

In New York, Maria left her middle school midyear, after years of physical and sexual harassment and bullying led to a drop in grades and constant anxiety.

All three young people have been identified with learning disabilities and all three say their repeated traumas complicate their special education needs.

These students (whose real names have been withheld) and their fellow plaintiffs are at the center of three ongoing test lawsuits that argue schools have a responsibility to consider and mitigate the effects of trauma on learning. The outcomes of these lawsuits could have ramifications for schools nationwide as evidence grows on the negative effects that traumatic events can have on children's learning and well-being.

See Also: Building a Trauma-Sensitive School

It's not that all students need individualized education plans, said Lauren Lystrup, a juvenile-justice and litigation fellow at the National Center for Youth Law in Oakland, Calif., who has been following the lawsuits. "It's that the district itself has practices that are exacerbating trauma, and those practices need to be addressed."

Traumatic experiences can range from discrete events like living through a natural disaster to the ongoing stress of parental abuse or homelessness. Emerging research has found repeated exposure to trauma significantly increases children's risks of later mental- and physical-health disorders, poor academic progress and behavior in school, and other problems.

"The trauma isn't about an event that happened; it's about what the impact is," said Susan Cole, the director of the Trauma and Learning Policy Initiative, a joint program of Massachusetts Advocates for Children and Harvard Law School. "Bad things happen all the time that are traumatizing. It doesn't necessarily mean a student becomes disabled."

Rather, traumatic experiences can trigger neurological stress responses-often called "fight, flight, or freeze"-and "if the child isn't buffered and helped to overcome these stresses, they can grow into disabilities," Cole said.

Misdiagnosis Is Common

In New York City, attorneys representing Maria and three other middle and high school girls argue that special education teams have a responsibility to be part of that buffering system. The girls already had been identified for special education when they reported experiencing sexual harassment and assaults.

"All four of our plaintiffs were suffering from sleeplessness, difficulty paying attention in class, emotional changes, behavioral changes, having a hard time completing assignments in a timely manner," said Amy Leipziger, a senior staff attorney at Queens Legal Services, who filed a lawsuit against the school district on behalf of the students this summer. "They were frequently running into their assailants or harassers, and there was that constant retriggering of the trauma. ... It was making it very difficult for them to be like, 'Here's the person who raped me, and now I've got to go to class to take a math test.' "

The lawsuit alleges the students' IEP teams refused to discuss the girls' increased academic and emotional difficulties in the context of those experiences and, for some likened their symptoms to attention-deficit hyperactivity disorders.

That's not uncommon, says a report by the nonprofit Child Mind Institute, which studies child mental health. It found ADHD is one of the most common misdiagnoses for post-traumatic stress.

"Symptoms common in PTSD, such as difficulty concentrating, exaggerated startle response, and hypervigilance, can make it seem like a child is jumpy and spacy," Jamie Howard, the director of the institute's Trauma Response and Education Service, concluded in the report.

Maria Doe was identified as having a learning disability before she started to experience sexual harassment but has since been diagnosed with anxiety issues. After her grades began to fall, she spent the last four months of the last school year at home.

"My math got better, my grades got better, too, being home-schooled, so I guess that was better," she said in an interview. "There's nobody here to harass me or bother me or say derogatory things to me. And I'm one-on-one with someone."

She will return to regular classes this year, though she has requested a safety transfer from the school her harassers attend. As a result of the lawsuit, Maria said she hoped school and district leaders would become more responsive to signs or reports of students experiencing trauma. "Take everything as serious and investigate more," she said.

Historic Trauma?

The two other lawsuits, in California and Arizona, argue that chronic and pervasive trauma doesn't just complicate disabilities but also may qualify as a disability status on its own.

"This is not just a legal requirement" to provide special education services, said Tara Ford, a clinical supervising attorney at Stanford Law School's Youth and Education Law Project, who is helping to represent Stephen and other Havasupai students. "When schools fail to invest in the resources needed to support students with complex trauma, teachers are less able to teach students, and students are less able to learn."

Under Section 504 of the federal Rehabilitation Act, students are entitled to accommodations for a disability that "impairs a major life function." Likewise, the Individuals with Disabilities Education Act requires schools to plan supports and monitor progress of students whose disabilities impede their learning.

"I think most administrators and teachers are trying to do the right thing by kids with the resources they have, but they don't always succeed," said Daniel Losen, the director of the Center for Civil Rights Remedies at the University of California, Los Angeles, Civil Rights Project. "There are misguided reasons for all kinds of policies and practices, ... and also inequities and unintentional racial bias still affect their perceptions and then their responses to kids and their families."

The American School Counselor Association found children's exposure to widespread racial or cultural discrimination can create or aggravate traumatic stress. At Havasupai Elementary, a Bureau of Indian Education school on the Havasupai reservation, for example, lawyers for Stephen and eight other students allege, in addition to students' personal traumatic experiences, that the tribal community faces historic and ongoing discrimination, including the BIE chronically underfunding the school to the point that it sometimes closed or went without enough teachers for extended periods. Stephen, who was identified as having ADHD, was often sent home from school because there were no mental-health or special education supports.

"District leaders need to take stock of their current use of resources-both time and money," said Ford, one of the lawyers who filed the lawsuit on behalf of the Havasupai students. "What routine approaches toward students are counterproductive or actively harmful? For example, how much time and money is being spent on punitive discipline, law-enforcement activities, restraint, and seclusion? Can existing resources be redirected in ways that help students?"

If successful, the lawsuits in Compton and the Havasupai reservation could set a precedent requiring schools to provide education accommodations and supports for students with a history of trauma.

From Lawsuit to Teamwork

Joseph Erardi, who was superintendent of the Newtown, Conn., school district after the fatal mass shooting there in 2012 and now consults and trains district leaders in safety and trauma-sensitive schooling for the School Superintendents Association, said the lawsuits reinforce the need for district leaders to work closely with parents and their communities when developing trauma-informed practices at school.

"School boards and school leaders are really taking as deep a dive as they can at trying to first understand the trauma piece and then trying to find partnership with parents and community. And that's the key: You can't do this alone," he said. "If parents felt that they needed to litigate to get what their child needs, I would question the school district, when did their partnership break down?"

"It's all about sensitivity to what the young person is experiencing and awareness that trauma turns off the learning switch in the brain," said Mark Rosenbaum of the Los Angeles firm Public Counsel, one of the lawyers who brought the suit against the Compton district in 2015.

Rodney Curry, a 19-year veteran teacher at Peter's Dominguez High School in Compton, joined that lawsuit with two other teachers. Curry said dozens of his students have died from violence, and students frequently come to him for help with trauma, but he had received no training on how to respond.

"Suspending or expelling a kid because they are ineffectively crying out for help communicates to that student that he or she doesn't deserve to be helped or understood," Curry said in the lawsuit.

The Compton lawsuit has been on hold since 2016, as the district and the plaintiffs' lawyers planned ways to address trauma in schools. Teachers now get training on trauma-informed practices.

The district is also setting up wellness centers in secondary schools to provide mental- and physical-health care to students.

Changes in Compton

After a discipline analysis showed rising suspension rates, particularly for students with disabilities and black or Native American students, the district also reviewed its discipline programs and is implementing restorative-justice programs at several schools. School security staff also have been trained in trauma-informed responses, including ways to calm students having emotional outbursts.

"The districtwide recognition is that learning cannot result unless the social-emotional needs of students and teachers are identified and nurtured," Rosenbaum said.

Lystrup of the National Center for Youth Law called the Compton suit "novel and groundbreaking," but she also noted its mixed reception from special education advocates. Some have warned that the way the suit frames trauma may stigmatize students in highly disadvantaged communities such as Compton, where nearly 1 in 4 children under 18 live in poverty.

"There's concern that this is saying all of the students in Compton were more likely to experience trauma and so, kind of labeling all students in Compton Unified as disabled, potentially risking reinforcing negative stereotypes about race and disability," Lystrup said.

Others hope the lawsuits will raise awareness of trauma-sensitive practices among administrators, teachers, and even students.

This spring, the Compton district partnered with Yetunde Price Resource Center, a charity founded by tennis stars Serena Williams and Venus Williams, and the Carrot Group, a technology nonprofit, to hold an "innovation challenge" in which teams of middle and high school students proposed science and technology-related supports to help those dealing with post-traumatic stress disorder.

The winning team, which designed an artificial intelligence app to help teenagers monitor and address their own stress reactions, came from one of the schools that first sparked Peter's lawsuit, Dominguez High.

Related Video
Listen to Peter P., the lead plaintiff in a California lawsuit arguing that schools have a duty to consider and mitigate their students' trauma, share his stress-inducing experiences in Compton schools in 2015. Testimony from Peter P., et al. v. Compton Unified School District, et al. courtesy of Public Counsel.
Published in Print: September 4, 2019, as Are Schools Required to Be Trauma-Sensitive?

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building a trauma-sensitive school series

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Do Distressed Students Have a Right to Trauma-Sensitive Schooling?

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In California, Peter was suspended or expelled from school after school after being abused by his mother's boyfriends and taken into foster care. In Arizona, Stephen lived with his grandparents in deep poverty on the Havasupai reservation and struggled to learn in a severely understaffed school in the middle of Grand Canyon National Park.

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Three new guidance documents have been released by the U.S. Department of Education. These documents explain the importance of the Rehabilitation Act, the confidentiality and rights of 504 students, and the laws on public, charter, and virtual school settings.

Mathewson, T. (2017, January 04). Ed Dept civil rights guidance covers IDEA, Rehabilitation Act. Retrieved September 26, 2020, from

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Dive Brief:

The U.S. Department of Education has released three new guidance documents outlining civil rights protections for students with disabilities at public and charter schools under the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act.

Education Week reports the first document explains Section 504, its definition for disability, and school obligations for providing a "free, appropriate public education," among other resources and information for parents and educators.

The second piece of guidance covers the use of restraint and seclusion and identifies why it could be a violation of students' rights under Section 504, while the third explains the obligations of charter schools under each law, including virtual charter schools.

Dive Insight:

This latest guidance from the Obama administration continues a legacy of aggressive enforcement of civil rights protections. The Departments of Education and Justice have routinely released guidance to schools and districts over the rights of students and responsibilities of education agencies, in some cases creating controversy along the way. The administration's guidance over protections for transgender students based on Title IX will be heard by the U.S. Supreme Court.

The specific attention on charter schools in this guidance can be read as a response to accusations that charters discriminate against students with disabilities by keeping them from enrolling or pushing them out. Virtual charter schools, which are supposed to be as open to all students as traditional public schools, have been particularly criticized for failing to make their online systems accessible. When students go to private schools, they waive their right to IDEA and Section 504 protections, including if they do so with state vouchers.

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Ed Dept civil rights guidance covers IDEA, Rehabilitation Act

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The U.S. Department of Education has released three new guidance documents outlining civil rights protections for students with disabilities at public and charter schools under the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act.

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Board of Education vs. Rowley (1982)- This court case involved a child who was selective mute and the school provided the child with a hearing aid to use in the classroom to help the child be able to comprehend the information from the teachers. In addition, the child was also required to receive additional tutoring support. The parents were still not satisfied with the support the child was receiving and requested the child have an assigned qualified sign-language interpreter. Because the parents of the child felt that the individual was not achieving her highest potential in each class this case went to court and was ruled in the parents favor that the school district needed to provide the sing-language interpreter.

Board of Educ. v. Rowley, 458 U.S. 176 (1982)

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U.S. Supreme Court
Board of Educ. v. Rowley, 458 U.S. 176 (1982)Board of Education, Hendrick Hudson Central School District v. Rowley No. 80-1002 Argued March 23, 1982 Decided June 28, 1982 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT The Education of the Handicapped Act (Act) provides federal money to assist state and local agencies in educating handicapped children. To qualify for federal assistance, a State must demonstrate, through a detailed plan submitted for federal approval, that it has in effect a policy that assures all handicapped children the right to a "free appropriate public education," which policy must be tailored to the unique needs of the handicapped child by means of an "individualized educational program" (IEP). The IEP must be prepared (and reviewed at least annually) by school officials with participation by the child's parents or guardian. The Act also requires that a participating State provide specified administrative procedures by which the child's parents or guardian may challenge any change in the evaluation and education of the child. Any party aggrieved by the state administrative decisions is authorized to bring a civil action in either a state court or a federal district court. Respondents -- a child with only minimal residual hearing who had been furnished by school authorities with a special hearing aid for use in the classroom and who was to receive additional instruction from tutors, and the child's parents -- filed suit in Federal District Court to review New York administrative proceedings that had upheld the school administrators' denial of the parents' request that the child also be provided a qualified sign-language interpreter in all of her academic classes. Entering judgment for respondents, the District Court found that although the child performed better than the average child in her class and was advancing easily from grade to grade, she was not performing as well academically as she would without her handicap. Because of this disparity between the child's achievement and her potential, the court held that she was not receiving a "free appropriate public education," which the court defined as "an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children." The Court of Appeals affirmed. Page 458 U. S. 177 Held: 1. The Act's requirement of a "free appropriate public education" is satisfied when the State provides personalized instruction with sufficient support services to permit the handicapped child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate grade levels used in the State's regular education, and must comport with the child's IEP, as formulated in accordance with the Act's requirements. If the child is being educated in regular classrooms, as here, the IEP should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. Pp. -204. (a) This interpretation is supported by the definitions contained in the Act, as well as by other provisions imposing procedural requirements and setting forth statutory findings and priorities for States to follow in extending educational services to handicapped children. The Act's language contains no express substantive standard prescribing the level of education to be accorded handicapped children. Pp. -190. (b) The Act's legislative history shows that Congress sought to make public education available to handicapped children, but did not intend to impose upon the States any greater substantive educational standard than is necessary to make such access to public education meaningful. The Act's intent was more to open the door of public education to handicapped children by means of specialized educational services than to guarantee any particular substantive level of education once inside. Pp. -197. (c) While Congress sought to provide assistance to the States in carrying out their constitutional responsibilities to provide equal protection of the laws, it did not intend to achieve strict equality of opportunity or services for handicapped and nonhandicapped children, but rather sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education. The Act does not require a State to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children. Pp. -200. 2. In suits brought under the Act's judicial review provisions, a court must first determine whether the State has complied with the statutory procedures, and must then determine whether the individualized program developed through such procedures is reasonably calculated to enable the child to receive educational benefits. If these requirements are met, the State has complied with the obligations imposed by Congress, and the courts can require no more. Pp. -208. Page 458 U. S. 178 (a) Although the judicial-review provisions do not limit courts to ensuring that States have complied with the Act's procedural requirements, the Act's emphasis on procedural safeguards demonstrates the legislative conviction that adequate compliance with prescribed procedures will in most cases assure much, if not all, of what Congress wished in the way of substantive content in an IEP. Pp. -207. (b) The courts must be careful to avoid imposing their view of preferable educational methods upon the States. Once a court determines that the Act's requirements have been met, questions of methodology are for resolution by the States. Pp. -208. 3. Entrusting a child's education to state and local agencies does not leave the child without protection. As demonstrated by this case, parents and guardians will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Act. Pp. -209. 4. The Act does not require the provision of a sign-language interpreter here. Neither of the courts below found that there had been a failure to comply with the Act's procedures, and the findings of neither court will support a conclusion that the child's educational program failed to comply with the substantive requirements of the Act. Pp. -210. 632 F.2d 945, reversed and remanded. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. . WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. . Page 458 U. S. 179 JUSTICE REHNQUIST delivered the opinion of the Court. This case presents a question of statutory interpretation. Petitioners contend that the Court of Appeals and the District Court misconstrued the requirements imposed by Congress upon States which receive federal funds under the Education of the Handicapped Act. We agree, and reverse the judgment of the Court of Appeals. I The Education of the Handicapped Act (Act), 84 Stat. 175, as amended, 20 U.S.C. § 1401 et seq. (1976 ed. and Supp. IV), provides federal money to assist state and local agencies in educating handicapped children, and conditions such funding upon a State's compliance with extensive goals and procedures. The Act represents an ambitious federal effort to promote the education of handicapped children, and was passed in response to Congress' perception that a majority of handicapped children in the United States "were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to 'drop out.'" H.R.Rep. No. 94 332, p. 2 (1975) (H.R.Rep.). The Act's evolution and major provisions shed light on the question of statutory interpretation which is at the heart of this case. Congress first addressed the problem of educating the handicapped in 1966, when it amended the Elementary and Page 458 U. S. 180 Secondary Education Act of 1965 to establish a grant program "for the purpose of assisting the States in the initiation, expansion, and improvement of programs and projects . . . for the education of handicapped children." Pub.L. 89-750, § 161, 80 Stat. 1204. That program was repealed in 1970 by the Education of the Handicapped Act, Pub.L. 91-230, 84 Stat. 175, Part B of which established a grant program similar in purpose to the repealed legislation. Neither the 1966 nor the 1970 legislation contained specific guidelines for state use of the grant money; both were aimed primarily at stimulating the States to develop educational resources and to train personnel for educating the handicapped. [ Footnote 1] Dissatisfied with the progress being made under these earlier enactments, and spurred by two District Court decisions holding that handicapped children should be given access to a public education, [ Footnote 2] Congress in 1974 greatly increased federal funding for education of the handicapped and, for the first time, required recipient States to adopt "a goal of providing full educational opportunities to all handicapped children." Pub.L. 93-380, 88 Stat. 579, 583 (1974 statute). The 1974 statute was recognized as an interim measure only, adopted "in order to give the Congress an additional year in which to study what, if any, additional Federal assistance [was] required to enable the States to meet the needs of handicapped children." H.R.Rep. at 4. The ensuing year of study produced the Education for All Handicapped Children Act of 1975. In order to qualify for federal financial assistance under the Act, a State must demonstrate that it "has in effect a policy Page 458 U. S. 181 that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412(1). That policy must be reflected in a state plan submitted to and approved by the Secretary of Education, [ Footnote 3] § 1413, which describes in detail the goals, programs, and timetables under which the State intends to educate handicapped children within its borders. §§ 1412, 1413. States receiving money under the Act must provide education to the handicapped by priority, first "to handicapped children who are not receiving an education" and second "to handicapped children . . . with the most severe handicaps who are receiving an inadequate education," § 1412(3), and, "to the maximum extent appropriate," must educate handicapped children "with children who are not handicapped." § 1412(5). [ Footnote 4] The Act broadly defines "handicapped children" to include "mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, [and] other health impaired children, [and] children with specific learning disabilities." § 1401(1). [ Footnote 5] The "free appropriate public education" required by the Act is tailored to the unique needs of the handicapped child by means of an "individualized educational program" (IEP). Page 458 U. S. 182 § 1401(18). The IEP, which is prepared at a meeting between a qualified representative of the local educational agency, the child's teacher, the child's parents or guardian, and, where appropriate, the child, consists of a written document containing "(A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved." § 1401(19). Local or regional educational agencies must review, and, where appropriate, revise, each child's IEP at least annually. § 1414(a)(5). See also § 1413(a)(11). In addition to the state plan and the IEP already described, the Act imposes extensive procedural requirements upon States receiving federal funds under its provisions. Parents or guardians of handicapped children must be notified of any proposed change in "the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to such child," and must be permitted to bring a complaint about "any matter relating to" such evaluation and education. §§ 1415(b)(1)(D) and (E). [ Footnote 6] Page 458 U. S. 183 Complaints brought by parents or guardians must be resolved at "an impartial due process hearing," and appeal to the state educational agency must be provided if the initial hearing is held at the local or regional level. §§ 1415(b)(2) and (C). [ Footnote 7] Thereafter, "[a]ny party aggrieved by the findings and decision" of the state administrative hearing has "the right to bring a civil action with respect to the complaint . . . in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." § 1415(e)(2). Thus, although the Act leaves to the States the primary responsibility for developing and executing educational programs for handicapped children, it imposes significant requirements to be followed in the discharge of that responsibility. Compliance is assured by provisions permitting the withholding of federal funds upon determination that a participating state or local agency has failed to satisfy the requirements of the Act, §§ 1414(b)(2)(A), 1416, and by the provision for judicial review. At present, all States except New Page 458 U. S. 184 Mexico receive federal funds under the portions of the Act at issue today. Brief for United States as Amicus Curiae 2, n. 2. II This case arose in connection with the education of Amy Rowley, a deaf student at the Furnace Woods School in the Hendrick Hudson Central School District, Peekskill, N.Y. Amy has minimal residual hearing, and is an excellent lip-reader. During the year before she began attending Furnace Woods, a meeting between her parents and school administrators resulted in a decision to place her in a regular kindergarten class in order to determine what supplemental services would be necessary to her education. Several members of the school administration prepared for Amy's arrival by attending a course in sign-language interpretation, and a teletype machine was installed in the principal's office to facilitate communication with her parents, who are also deaf. At the end of the trial period, it was determined that Amy should remain in the kindergarten class, but that she should be provided with an FM hearing aid which would amplify words spoken into a wireless receiver by the teacher or fellow students during certain classroom activities. Amy successfully completed her kindergarten year. As required by the Act, an IEP was prepared for Amy during the fall of her first-grade year. The IEP provided that Amy should be educated in a regular classroom at Furnace Woods, should continue to use the FM hearing aid, and should receive instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week. The Rowleys agreed with parts of the IEP, but insisted that Amy also be provided a qualified sign-language interpreter in all her academic classes in lieu of the assistance proposed in other parts of the IEP. Such an interpreter had been placed in Amy's kindergarten class for a 2-week experimental period, but the interpreter had reported that Amy did not need his services at that time. The school administrators Page 458 U. S. 185 likewise concluded that Amy did not need such an interpreter in her first-grade classroom. They reached this conclusion after consulting the school district's Committee on the Handicapped, which had received expert evidence from Amy's parents on the importance of a sign-language interpreter, received testimony from Amy's teacher and other persons familiar with her academic and social progress, and visited a class for the deaf. When their request for an interpreter was denied, the Rowleys demanded and received a hearing before an independent examiner. After receiving evidence from both sides, the examiner agreed with the administrators' determination that an interpreter was not necessary, because "Amy was achieving educationally, academically, and socially" without such assistance. App. to Pet. for Cert. F-22. The examiner's decision was affirmed on appeal by the New York Commissioner of Education on the basis of substantial evidence in the record. Id. at E-4. Pursuant to the Act's provision for judicial review, the Rowleys then brought an action in the United States District Court for the Southern District of New York, claiming that the administrators' denial of the sign-language interpreter constituted a denial of the "free appropriate public education" guaranteed by the Act. The District Court found that Amy "is a remarkably well-adjusted child" who interacts and communicates well with her classmates and has "developed an extraordinary rapport" with her teachers. 483 F. Supp. 528, 531 (1980). It also found that "she performs better than the average child in her class, and is advancing easily from grade to grade," id. at 534, but "that she understands considerably less of what goes on in class than she could if she were not deaf," and thus "is not learning as much, or performing as well academically, as she would without her handicap," id. at 532. This disparity between Amy's achievement and her potential led the court to decide that she was not receiving a "free appropriate public Page 458 U. S. 186 education," which the court defined as "an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children." Id. at 534. According to the District Court, such a standard "requires that the potential of the handicapped child be measured and compared to his or her performance, and that the resulting differential or 'shortfall' be compared to the shortfall experienced by nonhandicapped children." Ibid. The District Court's definition arose from its assumption that the responsibility for "giv[ing] content to the requirement of an appropriate education'" had "been left entirely to the [federal] courts and the hearing officers." Id. at 533. [Footnote 8] A divided panel of the United States Court of Appeals for the Second Circuit affirmed. The Court of Appeals "agree[d] with the [D]istrict [C]ourt's conclusions of law," and held that its "findings of fact [were] not clearly erroneous." 632 F.2d 945, 947 (1980). We granted certiorari to review the lower courts' interpretation of the Act. 454 U.S. 961 (1981). Such review requires us to consider two questions: what is meant by the Act's requirement of a "free appropriate public education"? And what is the role of state and federal courts in exercising the review granted by 20 U.S.C. § 1415? We consider these questions separately. [ Footnote 9] Page 458 U. S. 187 III A This is the first case in which this Court has been called upon to interpret any provision of the Act. As noted previously, the District Court and the Court of Appeals concluded that "[t]he Act itself does not define appropriate education,'" 483 F. Supp. at 533, but leaves "to the courts and the hearing officers" the responsibility of "giv[ing] content to the requirement of an `appropriate education.'" Ibid. See also 632 F.2d at 947. Petitioners contend that the definition of the phrase "free appropriate public education" used by the courts below overlooks the definition of that phrase actually found in the Act. Respondents agree that the Act defines "free appropriate public education," but contend that the statutory definition is not "functional," and thus "offers judges no guidance in their consideration of controversies involving 'the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education.'" Brief for Respondents 28. The United States, appearing as amicus curiae on behalf of respondents, states that, "[a]lthough the Act includes definitions of a 'free appropriate public education' and other related terms, the statutory definitions do not adequately explain what is meant by 'appropriate.'" Brief for United States as Amicus Curiae 13. We are loath to conclude that Congress failed to offer any assistance in defining the meaning of the principal substantive phrase used in the Act. It is beyond dispute that, contrary to the conclusions of the courts below, the Act does expressly define "free appropriate public education": Page 458 U. S. 188 "The term 'free appropriate public education' means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title." § 1401(18) (emphasis added). "Special education," as referred to in this definition, means "specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions." § 1401(16). "Related services" are defined as "transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a handicapped child to benefit from special education." § 1401(17). [ Footnote 10] Like many statutory definitions, this one tends toward the cryptic, rather than the comprehensive, but that is scarcely a reason for abandoning the quest for legislative intent. Whether or not the definition is a "functional" one, as respondents contend it is not, it is the principal tool which Congress has given us for parsing the critical phrase of the Act. We think more must be made of it than either respondents or the United States seems willing to admit. According to the definitions contained in the Act, a "free appropriate public education" consists of educational instruction specially designed to meet the unique needs of the handicapped Page 458 U. S. 189 child, supported by such services as are necessary to permit the child "to benefit" from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State's educational standards, approximate the grade levels used in the State's regular education, and comport with the child's IEP. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a "free appropriate public education" as defined by the Act. Other portions of the statute also shed light upon congressional intent. Congress found that, of the roughly eight million handicapped children in the United States at the time of enactment, one million were "excluded entirely from the public school system," and more than half were receiving an inappropriate education. 89 Stat. 774, note following § 1401. In addition, as mentioned in Part I, the Act requires States to extend educational services first to those children who are receiving no education and second to those children who are receiving an "inadequate education." § 1412(3). When these express statutory findings and priorities are read together with the Act's extensive procedural requirements and its definition of "free appropriate public education," the face of the statute evinces a congressional intent to bring previously excluded handicapped children into the public education systems of the States and to require the States to adopt procedures which would result in individualized consideration of and instruction for each child. Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children. Certainly the language of the statute contains no requirement like the one imposed by the lower courts -- that States maximize the potential of handicapped children "commensurate with the opportunity Page 458 U. S. 190 provided to other children." 483 F. Supp. at 534. That standard was expounded by the District Court without reference to the statutory definitions or even to the legislative history of the Act. Although we find the statutory definition of "free appropriate public education" to be helpful in our interpretation of the Act, there remains the question of whether the legislative history indicates a congressional intent that such education meet some additional substantive standard. For an answer, we turn to that history. [ Footnote 11] Page 458 U. S. 191 B (i) As suggested in federal support for education of the handicapped is a fairly recent development. Before passage of the Act, some States had passed laws to improve the educational services afforded handicapped children, [ Footnote 12] but many of these children were excluded completely from any form of public education or were left to fend for themselves in classrooms designed for education of their nonhandicapped peers. As previously noted, the House Report begins by emphasizing this exclusion and misplacement, noting that millions of handicapped children "were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to 'drop out.'" H.R.Rep. at 2. See also S.Rep. at 8. One of the Act's two principal sponsors in the Senate urged its passage in similar terms: "While much progress has been made in the last few years, we can take no solace in that progress until all handicapped children are, in fact, receiving an education. The most recent statistics provided by the Bureau of Education for the Handicapped estimate that . . . 1.75 million handicapped children do not receive any educational services, and 2.5 million handicapped children are not receiving an appropriate education." 121 Cong.Rec.19486 (1975) (remarks of Sen. Williams). This concern, stressed repeatedly throughout the legislative history, [ Footnote 13] confirms the impression conveyed by the language Page 458 U. S. 192 of the statute: by passing the Act, Congress sought primarily to make public education available to handicapped children. But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful. Indeed, Congress expressly "recognize[d] that, in many instances, the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome." S.Rep. at 11. Thus, the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside. Both the House and the Senate Reports attribute the impetus for the Act and its predecessors to two federal court judgments rendered in 1971 and 1972. As the Senate Report states, passage of the Act "followed a series of landmark court cases establishing in law the right to education for all handicapped children." S.Rep. at 6. [ Footnote 14] The first case, Pennsylvania Assn. for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (ED Pa.1971) and 343 F. Supp. 279 (1972) ( PARC), was a suit on behalf of retarded children challenging the constitutionality of a Pennsylvania statute which acted to exclude them from public education and training. The case ended in a consent decree which enjoined the State from "deny[ing] to any mentally retarded child access to a free public program of education and training." 334 F. Supp. at 1258 (emphasis added). PARC was followed by Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (DC 1972), a case in which the plaintiff handicapped children had been excluded Page 458 U. S. 193 from the District of Columbia public schools. The court's judgment, quoted in S.Rep. at 6, provided that "no [handicapped] child eligible for a publicly supported education in the District of Columbia public schools shall be excluded from a regular school assignment by a Rule, policy, or practice of the Board of Education of the District of Columbia or its agents unless such child is provided (a) adequate alternative educational services suited to the child's needs, which may include special education or tuition grants, and (b) a constitutionally adequate prior hearing and periodic review of the child's status, progress, and the adequacy of any educational alternative." 348 F. Supp. at 878 (emphasis added). Mills and PARC both held that handicapped children must be given access to an adequate, publicly supported education. Neither case purports to require any particular substantive level of education. [ Footnote 15] Rather, like the language of the Act, Page 458 U. S. 194 the cases set forth extensive procedures to be followed in formulating personalized educational programs for handicapped children. See 348 F.Supp. at 878-883; 334 F. Supp. at 1251267. [ Footnote 16] The fact that both PARC and Mills are discussed at length in the legislative Reports [ Footnote 17] suggests that the principles which they established are the principles which, to a significant extent, guided the drafters of the Act. Indeed, immediately after discussing these cases, the Senate Report describes the 1974 statute as having "incorporated the major principles of the right to education cases." S.Rep. at 8. Those principles, in turn, became the basis of the Act, which itself was designed to effectuate the purposes of the 1974 statute. H.R.Rep. at 5. [ Footnote 18] Page 458 U. S. 195 That the Act imposes no clear obligation upon recipient States beyond the requirement that handicapped children receive some form of specialized education is perhaps best demonstrated by the fact that Congress, in explaining the need for the Act, equated an "appropriate education" to the receipt of some specialized educational services. The Senate Report states: "[T]he most recent statistics provided by the Bureau of Education for the Handicapped estimate that, of the more than 8 million children . . . with handicapping conditions requiring special education and related services, only 3.9 million such children are receiving an appropriate education." S.Rep. at 8. [ Footnote 19] This statement, which reveals Congress' view that 3.9 million handicapped children were "receiving an appropriate education" in 1975, is followed immediately in the Senate Report by a table showing that 3.9 million handicapped children were "served" in 1975, and a slightly larger number were "unserved." A similar statement and table appear in the House Report. H.R.Rep. at 11-12. Page 458 U. S. 196 It is evident from the legislative history that the characterization of handicapped children as "served" referred to children who were receiving some form of specialized educational services from the States, and that the characterization of children as "unserved" referred to those who were receiving no specialized educational services. For example, a letter sent to the United States Commissioner of Education by the House Committee on Education and Labor, signed by two key sponsors of the Act in the House, asked the Commissioner to identify the number of handicapped "children served" in each State. The letter asked for statistics on the number of children "being served" in various types of "special education program[s]" and the number of children who were not "receiving educational services." Hearings on S. 6 before the Subcommittee on the Handicapped of the Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess., 205-207 (1975). Similarly, Senator Randolph, one of the Act's principal sponsors in the Senate, noted that roughly one-half of the handicapped children in the United States "are receiving special educational services." Id. at 1. [ Footnote 20] By Page 458 U. S. 197 characterizing the 3.9 million handicapped children who were "served" as children who were "receiving an appropriate education," the Senate and House Reports unmistakably disclose Congress' perception of the type of education required by the Act an "appropriate education" is provided when personalized educational services are provided. [ Footnote 21] Page 458 U. S. 198(ii) Respondents contend that "the goal of the Act is to provide each handicapped child with an equal educational opportunity." Brief for Respondents 35. We think, however, that the requirement that a State provide specialized educational services to handicapped children generates no additional requirement that the services so provided be sufficient to maximize each child's potential "commensurate with the opportunity provided other children." Respondents and the United States correctly note that Congress sought "to provide assistance to the States in carrying out their responsibilities under . . . the Constitution of the United States to provide equal protection of the laws." S.Rep. at 13. [ Footnote 22] But we do not think that such statements imply a congressional intent to achieve strict equality of opportunity or services. The educational opportunities provided by our public school systems undoubtedly differ from student to student, depending upon a myriad of factors that might affect a particular student's ability to assimilate information presented in the classroom. The requirement that States provide "equal" educational opportunities would thus seem to present an entirely unworkable standard requiring impossible measurements and comparisons. Similarly, furnishing handicapped children with only such services as are available to nonhandicapped Page 458 U. S. 199 children would in all probability fall short of the statutory requirement of "free appropriate public education"; to require, on the other hand, the furnishing of every special service necessary to maximize each handicapped child's potential is, we think, further than Congress intended to go. Thus, to speak in terms of "equal" services in one instance gives less than what is required by the Act, and in another instance, more. The theme of the Act is "free appropriate public education," a phrase which is too complex to be captured by the word "equal," whether one is speaking of opportunities or services. The legislative conception of the requirements of equal protection was undoubtedly informed by the two District Court decisions referred to above. But cases such as Mills and PARC held simply that handicapped children may not be excluded entirely from public education. In Mills, the District Court said: "If sufficient funds are not available to finance all of the services and programs that are needed and desirable in the system, then the available funds must be expended equitably in such a manner that no child is entirely excluded from a publicly supported education consistent with his needs and ability to benefit therefrom." 348 F. Supp. at 876. The PARC court used similar language, saying "[i]t is the commonwealth's obligation to place each mentally retarded child in a free, public program of education and training appropriate to the child's capacity. . . ." 334 F. Supp. at 1260. The right of access to free public education enunciated by these cases is significantly different from any notion of absolute equality of opportunity regardless of capacity. To the extent that Congress might have looked further than these cases which are mentioned in the legislative history, at the time of enactment of the Act, this Court had held at least twice that the Equal Protection Clause of the Fourteenth Page 458 U. S. 200 Amendment does not require States to expend equal financial resources on the education of each child. San Antonio Independent School Dist. v. Rodriguez, (1973); McInnis v. Shapiro, 293 F. Supp. 327 (ND Ill.1968), aff'd sub nom. McInnis v. Ogilvie, (1969). In explaining the need for federal legislation, the House Report noted that "no congressional legislation has required a precise guarantee for handicapped children, i.e., a basic floor of opportunity that would bring into compliance all school districts with the constitutional right of equal protection with respect to handicapped children." H.R.Rep. at 14. Assuming that the Act was designed to fill the need identified in the House Report -- that is, to provide a "basic floor of opportunity" consistent with equal protection -- neither the Act nor its history persuasively demonstrates that Congress thought that equal protection required anything more than equal access. Therefore, Congress' desire to provide specialized educational services, even in furtherance of "equality," cannot be read as imposing any particular substantive educational standard upon the States. The District Court and the Court of Appeals thus erred when they held that the Act requires New York to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children. Desirable though that goal might be, it is not the standard that Congress imposed upon States which receive funding under the Act. Rather, Congress sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education.(iii) Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the Page 458 U. S. 201 handicapped child receive no benefit from that education. The statutory definition of "free appropriate public education," in addition to requiring that States provide each child with "specially designed instruction," expressly requires the provision of "such . . . supportive services . . . as may be required to assist a handicapped child to benefit from special education." § 1401(17) (emphasis added). We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. [ Footnote 23] Page 458 U. S. 202 The determination of when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the Act presents a more difficult problem. The Act requires participating States to educate a wide spectrum of handicapped children, from the marginally hearing-impaired to the profoundly retarded and palsied. It is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between. One child may have little difficulty competing successfully in an academic setting with nonhandicapped children, while another child may encounter great difficulty in acquiring even the most basic of self-maintenance skills. We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to that situation. The Act requires participating States to educate handicapped children with nonhandicapped children whenever possible. [ Footnote 24] When that "mainstreaming" preference of the Act Page 458 U. S. 203 has been met and a child is being educated in the regular classrooms of a public school system, the system itself monitors the educational progress of the child. Regular examinations are administered, grades are awarded, and yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material. The grading and advancement system thus constitutes an important factor in determining educational benefit. Children who graduate from our public school systems are considered by our society to have been "educated" at least to the grade level they have completed, and access to an "education" for handicapped children is precisely what Congress sought to provide in the Act. [ Footnote 25] C When the language of the Act and its legislative history are considered together, the requirements imposed by Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a "free appropriate public education," we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate the grade levels used in the State's regular education, and must comport with the child's IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of Page 458 U. S. 204 the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. [ Footnote 26] IV A As mentioned in the Act permits "[a]ny party aggrieved by the findings and decision" of the state administrative hearings "to bring a civil action" in "any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." § 1415(e)(2). The complaint, and therefore the civil action, may concern "any matter relating to the identification, evaluation, or educational placement of the child, or the provision Page 458 U. S. 205 of a free appropriate public education to such child." § 1415(b)(1)(E). In reviewing the complaint, the Act provides that a court "shall receive the record of the [state] administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." § 1415(e)(2). The parties disagree sharply over the meaning of these provisions, petitioners contending that courts are given only limited authority to review for state compliance with the Act's procedural requirements and no power to review the substance of the state program, and respondents contending that the Act requires courts to exercise de novo review over state educational decisions and policies. We find petitioners' contention unpersuasive, for Congress expressly rejected provisions that would have so severely restricted the role of reviewing courts. In substituting the current language of the statute for language that would have made state administrative findings conclusive if supported by substantial evidence, the Conference Committee explained that courts were to make "independent decision[s] based on a preponderance of the evidence." S.Conf.Rep. No. 94-455, p. 50 (1975). See also 121 Cong.Rec. 37416 (1975) (remarks of Sen. Williams). But although we find that this grant of authority is broader than claimed by petitioners, we think the fact that it is found in § 1415, which is entitled "Procedural safeguards," is not without significance. When the elaborate and highly specific procedural safeguards embodied in § 1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e.g., §§ 1415(a)-(d), as it did upon the measurement of the resulting Page 458 U. S. 206 IEP against a substantive standard. We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would, in most cases, assure much, if not all, of what Congress wished in the way of substantive content in an IEP. Thus, the provision that a reviewing court base its decision on the "preponderance of the evidence" is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review. The very importance which Congress has attached to compliance with certain procedures in the preparation of an IEP would be frustrated if a court were permitted simply to set state decisions at nought. The fact that § 1415(e) requires that the reviewing court "receive the records of the [state] administrative proceedings" carries with it the implied requirement that due weight shall be given to these proceedings. And we find nothing in the Act to suggest that, merely because Congress was rather sketchy in establishing substantive requirements, as opposed to procedural requirements, for the preparation of an IEP, it intended that reviewing courts should have a free hand to impose substantive standards of review which cannot be derived from the Act itself. In short, the statutory authorization to grant "such relief as the court determines is appropriate" cannot be read without reference to the obligations, largely procedural in nature, which are imposed upon recipient States by Congress. Therefore, a court's inquiry in suits brought under § 1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act? [ Footnote 27] And second, is the Page 458 U. S. 207 individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? [ Footnote 28] If these requirements are met, the State has complied with the obligations imposed by Congress, and the courts can require no more. B In assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the States. [ Footnote 29] The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child. The Act expressly charges States with the responsibility of "acquiring and disseminating to teachers and administrators of programs for handicapped children significant information derived from educational research, demonstration, and similar projects, and [of] adopting, where appropriate, promising educational practices and materials." § 1413(a)(3). In the face of such a clear statutory directive, it seems highly unlikely that Congress intended Page 458 U. S. 208 courts to overturn a State's choice of appropriate educational theories in a proceeding conducted pursuant to § 1415(e)(2). [ Footnote 30] We previously have cautioned that courts lack the "specialized knowledge and experience" necessary to resolve "persistent and difficult questions of educational policy." San Antonio Independent School Dist. v. Rodriguez, 411 U.S. at . We think that Congress shared that view when it passed the Act. As already demonstrated, Congress' intention was not that the Act displace the primacy of States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped. Therefore, once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States. V Entrusting a child's education to state and local agencies does not leave the child without protection. Congress sought to protect individual children by providing for parental involvement in the development of state plans and policies, supra, at -183, and n. 6, and in the formulation of the child's individual educational program. As the Senate Report states: "The Committee recognizes that, in many instances, the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome. By changing the language [of the provision relating to individualized educational programs] to emphasize the process of parent and child Page 458 U. S. 209 involvement and to provide a written record of reasonable expectations, the Committee intends to clarify that such individualized planning conferences are a way to provide parent involvement and protection to assure that appropriate services are provided to a handicapped child." S.Rep. at 11-12. See also S.Conf.Rep. No. 94-445, p. 30 (1975); 34 CFR § 300.345 (1981). As this very case demonstrates, parents and guardians will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Act. [ Footnote 31] VI Applying these principles to the facts of this case, we conclude that the Court of Appeals erred in affirming the decision of the District Court. Neither the District Court nor the Court of Appeals found that petitioners had failed to comply with the procedures of the Act, and the findings of neither court would support a conclusion that Amy's educational program failed to comply with the substantive requirements of the Act. On the contrary, the District Court found that the "evidence firmly establishes that Amy is receiving an Page 458 U. S. 210 'adequate' education, since she performs better than the average child in her class and is advancing easily from grade to grade." 483 F. Supp. at 534. In light of this finding, and of the fact that Amy was receiving personalized instruction and related services calculated by the Furnace Woods school administrators to meet her educational needs, the lower courts should not have concluded that the Act requires the provision of a sign-language interpreter. Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. [ Footnote 32] So ordered. [ Footnote 1] See S.Rep. No. 94-168, p. 5 (1975) (S.Rep.); H.R.Rep. at 2-3. [ Footnote 2] Two cases, Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (DC 1972), and Pennsylvania Assn. for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (ED Pa.1971) and 343 F. Supp. 279 (1972), were later identified as the most prominent of the cases contributing to Congress' enactment of the Act and the statutes which preceded it. H.R.Rep. at 3-4. Both decisions are discussed in [ Footnote 3] All functions of the Commissioner of Education, formerly an officer in the Department of Health, Education, and Welfare, were transferred to the Secretary of Education in 1979 when Congress passed the Department of Education Organization Act, 20 U.S.C. § 3401 et seq. (1976 ed., Supp. IV). See 20 U.S.C. § 3441(a)(1) (1976 ed., Supp. IV). [ Footnote 4] Despite this preference for "mainstreaming" handicapped children -- educating them with nonhandicapped children -- Congress recognized that regular classrooms simply would not be a suitable setting for the education of many handicapped children. The Act expressly acknowledges that "the nature or severity of the handicap [may be] such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." § 1412(5). The Act thus provides for the education of some handicapped children in separate classes or institutional settings. See ibid.; § 1413(a)(4). [ Footnote 5] In addition to covering a wide variety of handicapping conditions, the Act requires special educational services for children "regardless of the severity of their handicap." §§ 1412(2)(C), 1414(a)(1)(A). [ Footnote 6] The requirements that parents be permitted to file complaints regarding their child's education, and be present when the child's IEP is formulated, represent only two examples of Congress' effort to maximize parental involvement in the education of each handicapped child. In addition, the Act requires that parents be permitted "to examine all relevant records with respect to the identification, evaluation, and educational placement of the child, and . . . to obtain an independent educational evaluation of the child." § 1415(b)(1)(A). See also §§ 1412(4), 1414(a)(4). State educational policies and the state plan submitted to the Secretary of Education must be formulated in "consultation with individuals involved in or concerned with the education of handicapped children, including handicapped individuals and parents or guardians of handicapped children." § 1412(7). See also § 1412(2)(E). Local agencies, which receive funds under the Act by applying to the state agency, must submit applications which assure that they have developed procedures for "the participation and consultation of the parents or guardian[s] of [handicapped] children" in local educational programs, § 1414(a)(1)(C)(iii), and the application itself, along with "all pertinent documents related to such application," must be made "available to parents, guardians, and other members of the general public." § 1414(a)(4). [ Footnote 7] "Any party" to a state or local administrative hearing must "be accorded (1) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of handicapped children, (2) the right to present evidence and confront, cross-examine, and compel the attendance of witnesses, (3) the right to a written or electronic verbatim record of such hearing, and (4) the right to written findings of fact and decisions." § 1415(d). [ Footnote 8] For reasons that are not revealed in the record, the District Court concluded that "[t]he Act itself does not define appropriate education.'" 483 F. Supp. at 533. In fact, the Act expressly defines the phrase "free appropriate public education," see § 1401(18), to which the District Court was referring. See 483 F. Supp. at 533. After overlooking the statutory definition, the District Court sought guidance not from regulations interpreting the Act, but from regulations promulgated under § 504 of the Rehabilitation Act. See 483 F. Supp. at 533, citing 45 CFR § 84.33(b). [ Footnote 9] The IEP which respondents challenged in the District Court was created for the 1978-1979 school year. Petitioners contend that the District Court erred in reviewing that IEP after the school year had ended and before the school administrators were able to develop another IEP for subsequent years. We disagree. Judicial review invariably takes more than nine months to complete, not to mention the time consumed during the preceding state administrative hearings. The District Court thus correctly ruled that it retained jurisdiction to grant relief because the alleged deficiencies in the IEP were capable of repetition as to the parties before it, yet evading review. 483 F. Supp. 536, 538 (1980). See Murphy v. Hunt, , (1982); Weinstein v. Bradford, , (1975). [ Footnote 10] Examples of "related services" identified in the Act are "speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only." § 1401(17). [ Footnote 11] The dissent, finding that "the standard of the courts below seems . . . to reflect the congressional purpose" of the Act, post at , concludes that our answer to this question "is not a satisfactory one." Post at . Presumably, the dissent also agrees with the District Court's conclusion that "it has been left entirely to the courts and the hearing officers to give content to the requirement of an appropriate education.'" 483 F. Supp. at 533. It thus seems that the dissent would give the courts carte blanche to impose upon the States whatever burden their various judgments indicate should be imposed. Indeed, the dissent clearly characterizes the requirement of an "appropriate education" as open-ended, noting that, "if there are limits not evident from the face of the statute on what may be considered an 'appropriate education,' they must be found in the purpose of the statute or its legislative history." Post at . Not only are we unable to find any suggestion from the face of the statute that the requirement of an "appropriate education" was to be limitless, but we also view the dissent's approach as contrary to the fundamental proposition that Congress, when exercising its spending power, can impose no burden upon the States unless it does so unambiguously. See infra at , n. 26. No one can doubt that this would have been an easier case if Congress had seen fit to provide a more comprehensive statutory definition of the phrase "free appropriate public education." But Congress did not do so, and "our problem is to construe what Congress has written. After all, Congress expresses its purpose by words. It is for us to ascertain -- neither to add nor to subtract, neither to delete nor to distort." 62 Cases of Jam v. United States, , (1951). We would be less than faithful to our obligation to construe what Congress has written if in this case we were to disregard the statutory language and legislative history of the Act by concluding that Congress had imposed upon the States a burden of unspecified proportions and weight, to be revealed only through case-by-case adjudication in the courts. [ Footnote 12] See H.R.Rep. at 10; Note, The Education of All Handicapped Children Act of 1975, 10 U.Mich.J.L.Ref. 110, 119 (1976). [ Footnote 13] See, e.g., 121 Cong.Rec.19494 (1975) (remarks of Sen. Javits) ("all too often, our handicapped citizens have been denied the opportunity to receive an adequate education"); id. at 19502 (remarks of Sen. Cranston) (millions of handicapped "children . . . are largely excluded from the educational opportunities that we give to our other children"); id. at 23708 (remarks of Rep. Mink) ("handicapped children . . . are denied access to public schools because of a lack of trained personnel"). [ Footnote 14] Similarly, the Senate Report states that it was an "[i]ncreased awareness of the educational needs of handicapped children and landmark court decisions establishing the right to education for handicapped children [that] pointed to the necessity of an expanded federal fiscal role." S.Rep. at 5. See also H.R.Rep. at 2-3. [ Footnote 15] The only substantive standard which can be implied from these cases comports with the standard implicit in the Act. PARC states that each child must receive "access to a free public program of education and training appropriate to his learning capacities," 334 F. Supp. at 1258 (emphasis added), and that further state action is required when it appears that "the needs of the mentally retarded child are not being adequately served," id. at 1266. (Emphasis added.) Mills also speaks in terms of "adequate" educational services, 348 F. Supp. at 878, and sets a realistic standard of providing some educational services to each child when every need cannot be met. "If sufficient funds are not available to finance all of the services and programs that are needed and desirable in the system, then the available funds must be expended equitably in such a manner that no child is entirely excluded from a publicly supported education consistent with his needs and ability to benefit therefrom. The inadequacies of the District of Columbia Public School System, whether occasioned by insufficient funding or administrative inefficiency, certainly cannot be permitted to bear more heavily on the 'exceptional' or handicapped child than on the normal child." Id. at 876. [ Footnote 16] Like the Act, PARC required the State to "identify, locate, [and] evaluate" handicapped children, 334 F. Supp. at 1267, to create for each child an individual educational program, id. at 1265, and to hold a hearing "on any change in educational assignment," id. at 1266. Mills also required the preparation of an individual educational program for each child. In addition, Mills permitted the child's parents to inspect records relevant to the child's education, to obtain an independent educational evaluation of the child, to object to the IEP and receive a hearing before an independent hearing officer, to be represented by counsel at the hearing, and to have the right to confront and cross-examine adverse witnesses, all of which are also permitted by the Act. 348 F. Supp. at 879-881. Like the Act, Mills also required that the education of handicapped children be conducted pursuant to an overall plan prepared by the District of Columbia, and established a policy of educating handicapped children with nonhandicapped children whenever possible. Ibid. [ Footnote 17] See S.Rep. at 6-7; H.R.Rep. at 3-4. [ Footnote 18] The 1974 statute "incorporated the major principles of the right to education cases," by "add[ing] important new provisions to the Education of the Handicapped Act which require the States to: establish a goal of providing full educational opportunities to all handicapped children; provide procedures for insuring that handicapped children and their parents or guardians are guaranteed procedural safeguards in decisions regarding identification, evaluation, and educational placement of handicapped children; establish procedures to insure that, to the maximum extent appropriate, handicapped children . . . are educated with children who are not handicapped; . . . and, establish procedures to insure that testing and evaluation materials and procedures utilized for the purposes of classification and placement of handicapped children will be selected and administered so as not to be racially or culturally discriminatory." S.Rep. at 8. The House Report explains that the Act simply incorporated these purposes of the 1974 statute: the Act was intended "primarily to amend . . . the Education of the Handicapped Act in order to provide permanent authorization and a comprehensive mechanism which will insure that those provisions enacted during the 93rd Congress [the 1974 statute] will result in maximum benefits for handicapped children and their families." H.R.Rep. at 5. Thus, the 1974 statute's purpose of providing handicapped children access to a public education became the purpose of the Act. [ Footnote 19] These statistics appear repeatedly throughout the legislative history of the Act, demonstrating a virtual consensus among legislators that 3.9 million handicapped children were receiving an appropriate education in 1975. See, e.g., 121 Cong.Rec.19486 (1975) (remarks of Sen. Williams); id. at 19504 (remarks of Sen. Schweicker); id. at 23702 (remarks of Rep. Madden); ibid. (remarks of Rep. Brademas); id. at 23709 (remarks of Rep. Minish); id. at 37024 (remarks of Rep. Brademas); id. at 37027 (remarks of Rep. Gude); id. at 37417 (remarks of Sen. Javits); id. at 37420 (remarks of Sen. Hathaway). [ Footnote 20] Senator Randolph stated: "[O]nly 55 percent of the school-aged handicapped children and 22 percent of the pre-school-aged handicapped children are receiving special educational services." Hearings on S. 6 before the Subcommittee on the Handicapped of the Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess., 1 (1975). Although the figures differ slightly in various parts of the legislative history, the general thrust of congressional calculations was that roughly one-half of the handicapped children in the United States were not receiving specialized educational services, and thus were not "served." See, e.g., 121 Cong.Rec.19494 (1975) (remarks of Sen. Javits) ("only 50 percent of the Nation's handicapped children received proper education services"); id. at 19504 (remarks of Sen. Humphrey) ("[a]lmost 3 million handicapped children, while in school, receive none of the special services that they require in order to make education a meaningful experience"); id. at 23706 (remarks of Rep. Quie) ("only 55 percent [of handicapped children] were receiving a public education"); id. at 23709 (remarks of Rep. Biaggi) ("[o]ver 3 million [handicapped] children in this country are receiving either below par education or none at all"). Statements similar to those appearing in the text, which equate "served" as it appears in the Senate Report to "receiving special educational services," appear throughout the legislative history. See, e.g., id. at 19492 (remarks of Sen. Williams); id. at 19494 (remarks of Sen. Javits); id. at 19496 (remarks of Sen. Stone); id. at 19504-19505 (remarks of Sen. Humphrey); id. at 23703 (remarks of Rep. Brademas); Hearings on H.R. 7217 before the Subcommittee on Select Education of the House Committee on Education and Labor, 94th Cong., 1st Sess., 91, 150, 153 (1975); Hearings on H.R. 4199 before the Select Subcommittee on Education of the House Committee on Education and Labor, 93d Cong., 1st Sess., 130, 139 (1973). See also 34 CFR § 300.343 (1981). [ Footnote 21] In seeking to read more into the Act than its language or legislative history will permit, the United States focuses upon the word "appropriate," arguing that "the statutory definitions do not adequately explain what [it means]." Brief for United States as Amicus Curiae 13. Whatever Congress meant by an "appropriate" education, it is clear that it did not mean a potential-maximizing education. The term, as used in reference to educating the handicapped, appears to have originated in the PARC decision, where the District Court required that handicapped children be provided with "education and training appropriate to [their] learning capacities." 334 F. Supp. at 1258. The word appears again in the Mills decision, the District Court at one point referring to the need for "an appropriate educational program," 348 F. Supp. at 879, and at another point speaking of a "suitable publicly supported education," id. at 878. Both cases also refer to the need for an "adequate" education. See 334 F. Supp. at 1266; 348 F. Supp. at 878. means definitive, suggests that Congress used the word as much to describe the settings in which handicapped children should be educated as to prescribe the substantive content or supportive services of their education. For example, § 1412(5) requires that handicapped children be educated in classrooms with nonhandicapped children "to the maximum extent appropriate." Similarly, § 1401(19) provides that, "whenever appropriate," handicapped children should attend and participate in the meeting at which their IEP is drafted. In addition, the definition of "free appropriate public education" itself states that instruction given handicapped children should be at an "appropriate preschool, elementary, or secondary school" level. § 1401(18)(C). The Act's use of the word "appropriate" thus seems to reflect Congress' recognition that some settings simply are not suitable environments for the participation of some handicapped children. At the very least, these statutory uses of the word refute the contention that Congress used "appropriate" as a term of art which concisely expresses the standard found by the lower courts. [ Footnote 22] See also 121 Cong.Rec.19492 (1975) (remarks of Sen. Williams); id. at 19504 (remarks of Sen. Humphrey). [ Footnote 23] This view is supported by the congressional intention, frequently expressed in the legislative history, that handicapped children be enabled to achieve a reasonable degree of self-sufficiency. After referring to statistics showing that many handicapped children were excluded from public education, the Senate Report states: "The long-range implications of these statistics are that public agencies and taxpayers will spend billions of dollars over the lifetimes of these individuals to maintain such persons as dependents and in a minimally acceptable lifestyle. With proper education services, many would be able to become productive citizens, contributing to society instead of being forced to remain burdens. Others, through such services, would increase their independence, thus reducing their dependence on society." S.Rep. at 9. See also H.R.Rep. at 11. Similarly, one of the principal Senate sponsors of the Act stated that "providing appropriate educational services now means that many of these individuals will be able to become a contributing part of our society, and they will not have to depend on subsistence payments from public funds." 121 Cong.Rec.19492 (1975) (remarks of Sen. Williams). See also id. at 25541 (remarks of Rep. Harkin); id. at 37024-37025 (remarks of Rep. Brademas); id. at 37027 (remarks of Rep. Gude); id. at 37410 (remarks of Sen. Randolph); id. at 37416 (remarks of Sen. Williams). The desire to provide handicapped children with an attainable degree of personal independence obviously anticipated that state educational programs would confer educational benefits upon such children. But at the same time, the goal of achieving some degree of self-sufficiency in most cases is a good deal more modest than the potential-maximizing goal adopted by the lower courts. Despite its frequent mention, we cannot conclude, as did the dissent in the Court of Appeals, that self-sufficiency was itself the substantive standard which Congress imposed upon the States. Because many mildly handicapped children will achieve self-sufficiency without state assistance, while personal independence for the severely handicapped may be an unreachable goal, "self-sufficiency" as a substantive standard is at once an inadequate protection and an overly demanding requirement. We thus view these references in the legislative history as evidence of Congress' intention that the services provided handicapped children be educationally beneficial, whatever the nature or severity of their handicap. [ Footnote 24] Title 20 U.S.C. § 1412(5) requires that participating States establish "procedures to assure that, to the maximum extent appropriate, handicapped children, including children in public or private institutions or other care facilities, are educated with children who are not handicapped, and that special classes, separate schooling, or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." [ Footnote 25] We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a "free appropriate public education." In this case, however, we find Amy's academic progress, when considered with the special services and professional consideration accorded by the Furnace Woods school administrators, to be dispositive. [ Footnote 26] In defending the decisions of the District Court and the Court of Appeals, respondents and the United States rely upon isolated statements in the legislative history concerning the achievement of maximum potential, see H.R.Rep. at 13, as support for their contention that Congress intended to impose greater substantive requirements than we have found. These statements, however, are too thin a reed on which to base an interpretation of the Act which disregards both its language and the balance of its legislative history. "Passing references and isolated phrases are not controlling when analyzing a legislative history." Department of State v. Washington Post Co., , (1982). Moreover, even were we to agree that these statements evince a congressional intent to maximize each child's potential, we could not hold that Congress had successfully imposed that burden upon the States. "[L]egislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the 'contract.' . . . Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously." Pennhurst State School v. Halderman, , (1981) (footnote omitted). As already demonstrated, the Act and its history impose no requirements on the States like those imposed by the District Court and the Court of Appeals. A fortiori, Congress has not done so unambiguously, as required in the valid exercise of its spending power. [ Footnote 27] This inquiry will require a court not only to satisfy itself that the State has adopted the state plan, policies, and assurances required by the Act, but also to determine that the State has created an IEP for the child in question which conforms with the requirements of § 1401(19). [ Footnote 28] When the handicapped child is being educated in the regular classrooms of a public school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit. See supra. [ Footnote 29] In this case, for example, both the state hearing officer and the District Court were presented with evidence as to the best method for educating the deaf, a question long debated among scholars. See Large, Special Problems of the Deaf Under the Education for All Handicapped Children Act of 1975, 58 Wash.U.L.Q. 213, 229 (1980). The District Court accepted the testimony of respondents' experts that there was "a trend supported by studies showing the greater degree of success of students brought up in deaf households using [the method of communication used by the Rowleys]." 483 F. Supp. at 535. [ Footnote 30] It is clear that Congress was aware of the States' traditional role in the formulation and execution of educational policy. "Historically, the States have had the primary responsibility for the education of children at the elementary and secondary level." 121 Cong.Rec.19498 (1975) (remarks of Sen. Dole). See also Epperson v. Arkansas, , (1968) ("By and large, public education in our Nation is committed to the control of state and local authorities"). [ Footnote 31] In addition to providing for extensive parental involvement in the formulation of state and local policies, as well as the preparation of individual educational programs, the Act ensures that States will receive the advice of experts in the field of educating handicapped children. As a condition for receiving federal funds under the Act, States must create "an advisory panel, appointed by the Governor or any other official authorized under State law to make such appointments, composed of individuals involved in or concerned with the education of handicapped children, including handicapped individuals, teachers, parents or guardians of handicapped children, State and local education officials, and administrators of programs for handicapped children, which (A) advises the State educational agency of unmet needs within the State in the education of handicapped children, [and] (B) comments publicly on any rules or regulations proposed for issuance by the State regarding the education of handicapped children." § 1413(a)(12). [ Footnote 32] Because the District Court declined to reach respondents' contention that petitioners had failed to comply with the Act's procedural requirements in developing Amy's IEP, 483 F. Supp. at 533, n. 8, the case must be remanded for further proceedings consistent with this opinion. JUSTICE BLACKMUN, concurring in the judgment. Although I reach the same result as the Court does today, I read the legislative history and goals of the Education of the Handicapped Act differently. Congress unambiguously stated that it intended to "take a more active role under its responsibility for equal protection of the laws to guarantee that handicapped children are provided equal educational opportunity." S.Rep. No. 94-168, p. 9 (1975) (emphasis added). See also 20 U.S.C. § 1412(2)(A)(i) (requiring States to establish plans with the "goal of providing full educational opportunity to all handicapped children"). As I have observed before, "[i]t seems plain to me that Congress, in enacting [this statute], intended to do more than merely set out politically self-serving but essentially meaningless language about what the [handicapped] deserve at the hands of state . . . authorities." Pennhurst State School v. Halderman, , (1981) (opinion concurring in part and concurring in judgment). The clarity of the legislative Page 458 U. S. 211 intent convinces me that the relevant question here is not, as the Court says, whether Amy Rowley's individualized education program was "reasonably calculated to enable [her] to receive educational benefits," ante at , measured in part by whether or not she "achieve[s] passing marks and advance[s] from grade to grade," ante at . Rather, the question is whether Amy's program, viewed as a whole, offered her an opportunity to understand and participate in the classroom that was substantially equal to that given her nonhandicapped classmates. This is a standard predicated on equal educational opportunity and equal access to the educational process, rather than upon Amy's achievement of any particular educational outcome. In answering this question, I believe that the District Court and the Court of Appeals should have given greater deference than they did to the findings of the School District's impartial hearing officer and the State's Commissioner of Education, both of whom sustained petitioners' refusal to add a sign-language interpreter to Amy's individualized education program. Cf. 20 U.S.C. § 1415(e)(2) (requiring reviewing court to "receive the records of the administrative proceedings" before granting relief). I would suggest further that those courts focused too narrowly on the presence or absence of a particular service a sign-language interpreter -- rather than on the total package of services furnished to Amy by the School Board. As the Court demonstrates, ante at -185, petitioner Board has provided Amy Rowley considerably more than "a teacher with a loud voice." See post at (dissenting opinion). By concentrating on whether Amy was "learning as much, or performing as well academically, as she would without her handicap," 483 F. Supp. 528, 532 (SDNY 1980), the District Court and the Court of Appeals paid too little attention to whether, on the entire record, respondent's individualized education program offered her an educational opportunity Page 458 U. S. 212 substantially equal to that provided her nonhandicapped classmates. Because I believe that standard has been satisfied here, I agree that the judgment of the Court of Appeals should be reversed. JUSTICE WHITE, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting. In order to reach its result in this case, the majority opinion contradicts itself, the language of the statute, and the legislative history. Both the majority's standard for a "free appropriate education" and its standard for judicial review disregard congressional intent. I The majority first turns its attention to the meaning of a "free appropriate public education." The Act provides: "The term 'free appropriate public education' means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title." 20 U.S.C. § 1401(18). The majority reads this statutory language as establishing a congressional intent limited to bringing "previously excluded handicapped children into the public education systems of the States and [requiring] the States to adopt procedures which would result in individualized consideration of and instruction for each child." Ante at . In its attempt to constrict the definition of "appropriate" and the thrust of the Act, the majority opinion states: "Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children. Certainly Page 458 U. S. 213 the language of the statute contains no requirement like the one imposed by the lower courts -- that States maximize the potential of handicapped children 'commensurate with the opportunity provided to other children.'" Ante at -190, quoting 483 F. Supp. 528, 534 (SDNY 1980). I agree that the language of the Act does not contain a substantive standard beyond requiring that the education offered must be "appropriate." However, if there are limits not evident from the face of the statute on what may be considered an "appropriate education," they must be found in the purpose of the statute or its legislative history. The Act itself announces it will provide a " full educational opportunity to all handicapped children." 20 U.S.C. § 1412(2)(A) (emphasis added). This goal is repeated throughout the legislative history, in statements too frequent to be " passing references and isolated phrases.'" [Footnote 2/1] Ante at , n. 26, quoting Department of State v. Washington Post Co., , (1982). These statements elucidate the meaning of "appropriate." According to the Senate Report for example, the Act does "guarantee that handicapped children are provided equal educational opportunity." S.Rep. No. 94-168, p. 9 (1975) (emphasis added). This promise appears throughout the legislative history. See 121 Cong.Rec.19482-19483 (1975) (remarks of Sen. Randolph); id. at 19504 (Sen. Humphrey); id. at 19505 (Sen. Beall); id. at 23704 (Rep. Brademas); id. at 25538 (Rep. Cornell); id. at 25540 (Rep. Grassley); id. at 37025 (Rep. Perkins); id. atPage 458 U. S. 214 37030 (Rep. Mink);id. at 37412 (Sen. Taft); id. at 37413 (Sen. Williams); id. at 37418-37419 (Sen. Cranston); id. at 37419-37420 (Sen. Beall). Indeed, at times, the purpose of the Act was described as tailoring each handicapped child's educational plan to enable the child "to achieve his or her maximum potential." H.R.Rep. No. 94-332, Pp. 13, 19 (1975); see 121 Cong.Rec. 23709 (1975). Senator Stafford, one of the sponsors of the Act, declared: "We can all agree that education [given a handicapped child] should be equivalent, at least, to the one those children who are not handicapped receive." Id. at 19483. The legislative history thus directly supports the conclusion that the Act intends to give handicapped children an educational opportunity commensurate with that given other children. The majority opinion announces a different substantive standard, that "Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful." Ante at . While "meaningful" is no more enlightening than "appropriate," the Court purports to clarify itself. Because Amy was provided with some specialized instruction from which she obtained some benefit, and because she passed from grade to grade, she was receiving a meaningful, and therefore appropriate, education. [ Footnote 2/2] Page 458 U. S. 215 This falls far short of what the Act intended. The Act details as specifically as possible the kind of specialized education each handicapped child must receive. It would apparently satisfy the Court's standard of "access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child," ante at , for a deaf child such as Amy to be given a teacher with a loud voice, for she would benefit from that service. The Act requires more. It defines "special education" to mean "specifically designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child. . . ." § 1401(16) (emphasis added). [ Footnote 2/3] Providing a teacher with a loud voice would not meet Amy's needs, and would not satisfy the Act. The basic floor of opportunity is, instead, as the courts below recognized, intended to eliminate the effects of the handicap, at least to the extent that the child will be given an equal opportunity to learn if that is reasonably possible. Amy Rowley, without a sign-language interpreter, comprehends less than half of what is said in the classroom -- less than half of what normal children comprehend. This is hardly an equal opportunity to learn, even if Amy makes passing grades. Despite its reliance on the use of "appropriate" in the definition of the Act, the majority opinion speculates that "Congress used the word as much to describe the settings in which Page 458 U. S. 216 handicapped children should be educated as to prescribe the substantive content or supportive services of their education." Ante at , n. 21. Of course, the word "appropriate" can be applied in many ways; at times in the Act, Congress used it to recommend mainstreaming handicapped children; at other points, it used the word to refer to the content of the individualized education. The issue before us is what standard the word "appropriate" incorporates when it is used to modify "education." The answer given by the Court is not a satisfactory one. II The Court's discussion of the standard for judicial review is as flawed as its discussion of a "free appropriate public education." According to the Court, a court can ask only whether the State has "complied with the procedures set forth in the Act" and whether the individualized education program is "reasonably calculated to enable the child to receive educational benefits." Ante at , . Both the language of the Act and the legislative history, however, demonstrate that Congress intended the courts to conduct a far more searching inquiry. The majority assigns major significance to the review provision's being found in a section entitled "Procedural safeguards." But where else would a provision for judicial review belong? The majority does acknowledge that the current language, specifying that a court "shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate," § 1415(e)(2), was substituted at Conference for language that would have restricted the role of the reviewing court much more sharply. It is clear enough to me that Congress decided to reduce substantially judicial deference to state administrative decisions. The legislative history shows that judicial review is not limited to procedural matters, and that the state educational agencies are given first, but not final, responsibility for the Page 458 U. S. 217 content of a handicapped child's education. The Conference Committee directs courts to make an "independent decision." S.Conf.Rep. No. 9 55, p. 50 (1975). The deliberate change in the review provision is an unusually clear indication that Congress intended courts to undertake substantive review, instead of relying on the conclusions of the state agency. On the floor of the Senate, Senator Williams, the chief sponsor of the bill, Committee Chairman, and floor manager responsible for the legislation in the Senate, emphasized the breadth of the review provisions at both the administrative and judicial levels: "Any parent or guardian may present a complaint concerning any matter regarding the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to such child. In this regard, Mr. President, I would like to stress that the language referring to 'free appropriate education' has been adopted to make clear that a complaint may involve matters such as questions respecting a child's individualized education program, questions of whether special education and related services are being provided without charge to the parents or guardians, questions relating to whether the services provided a child meet the standards of the State education agency, or any other question within the scope of the definition of 'free appropriate public education.' In addition, it should be clear that a parent or guardian may present a complaint alleging that a State or local education agency has refused to provide services to which a child may be entitled or alleging that the State or local educational agency has erroneously classified a child as a handicapped child when, in fact, that child is not a handicapped child." 121 Cong.Rec. 37415 (1975) (emphasis added). There is no doubt that the state agency itself must make substantive decisions. The legislative history reveals that the Page 458 U. S. 218 courts are to consider, de novo, the same issues. Senator Williams explicitly stated that the civil action permitted under the Act encompasses all matters related to the original complaint. Id. at 37416. Thus, the Court's limitations on judicial review have no support in either the language of the Act or the legislative history. Congress did not envision that inquiry would end if a showing is made that the child is receiving passing marks and is advancing from grade to grade. Instead, it intended to permit a full and searching inquiry into any aspect of a handicapped child's education. The Court's standard, for example, would not permit a challenge to part of the IEP; the legislative history demonstrates beyond doubt that Congress intended such challenges to be possible, even if the plan as developed is reasonably calculated to give the child some benefits. Parents can challenge the IEP for failing to supply the special education and related services needed by the individual handicapped child. That is what the Rowleys did. As the Government observes, "courts called upon to review the content of an IEP, in accordance with 20 U.S.C. [§] 1415(e) inevitably are required to make a judgment, on the basis of the evidence presented, concerning whether the educational methods proposed by the local school district are 'appropriate' for the handicapped child involved." Brief for United States as Amicus Curiae 13. The courts below, as they were required by the Act, did precisely that. Under the judicial review provisions of the Act, neither the District Court nor the Court of Appeals was bound by the State's construction of what an "appropriate" education means in general, or by what the state authorities considered to be an appropriate education for Amy Rowley. Because the standard of the courts below seems to me to reflect the congressional purpose, and because their factual findings are not clearly erroneous, I respectfully dissent. [ Footnote 2/1] The Court's opinion relies heavily on the statement, which occurs throughout the legislative history, that, at the time of enactment, one million of the roughly eight million handicapped children in the United States were excluded entirely from the public school system, and more than half were receiving an inappropriate education. See, e.g., ante at , , -197, n. 20. But this statement was often linked to statements urging equal educational opportunity. See, e.g., 121 Cong.Rec.19502 (1975) (remarks of Sen. Cranston); id. at 23702 (remarks of Rep. Brademas). That is, Congress wanted not only to bring handicapped children into the schoolhouse, but also to benefit them once they had entered. [ Footnote 2/2] As further support for its conclusion, the majority opinion turns to Pennsylvania Assn. for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (ED Pa.1971), 343 F. Supp. 279 (1972) ( PARC), and Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (DC 1972). That these decisions served as an impetus for the Act does not, however, establish them as the limits of the Act. In any case, the very language that the majority quotes from Mills, ante at , , sets a standard not of some education, but of educational opportunity equal to that of nonhandicapped children. Indeed, Mills, relying on decisions since called into question by this Court's opinion in San Antonio Independent School Dist. v. Rodriguez, (1973), states: "In Hobson v. Hansen, [ 269 F. Supp. 401 (DC 1967),] Judge Wright found that denying poor public school children educational opportunity equal to that available to more affluent public school children was violative of the Due Process Clause of the Fifth Amendment. A fortiori, the defendants' conduct here, denying plaintiffs and their class not just an equal publicly supported education, but all publicly supported education, while providing such education to other children, is violative of the Due Process Clause." 348 F. Supp. at 875. Whatever the effect of Rodriguez on the validity of this reasoning, the statement exposes the majority's mischaracterization of the opinion, and thus of the assumptions of the legislature that passed the Act. [ Footnote 2/3] "Related services" are "transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a handicapped child to benefit from special education." § 1401(17).

# data[].attributes.body
Federal: 20 USC Ch. 18A: Front Matter. This law requires early education programs for handicapped children. Therefore, any child in the Section 504 program by law must receive the adequate education that is required by law.

Front Matter, 20 USC, Ch.18A
https://uscode.house.gov/browse/prelim@title20/chapter18A&edition=prelim

State: School Health and Related Service Programs, Tex Educ. Code § 38.033- This law requires each educator to follow the individualized educational plan put into place for each child under the Section 504 program. These individuals have the right to a Free Appropriate Public Education (FAPE).

School Health and Related Service Programs, Tex Educ. Code § 38.033

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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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Teacher Standards, 19 Tex. Admin. Code § 149.1001 – This code, teachers follow the standards on “maintaining a physically and emotionally safe, supportive learning environment” for the students (19 T.A.C. § 149.1001). If a student is labeled 504 and receives an IEP to help the child be successful in the classroom the adult must keep this code in mind and apply this standard to the child.

Teacher Standards, 19 Tex. Admin. Code § 149.1001. Retrieved from https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=19&pt=2&ch=149&rl=1001

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The 14th amendment of the U.S. Constitution declares that each individual will receive equal protection. Also, no law can take away an individual’s equal citizens rights away even if an individual has a learning disability.

U.S. Const. amend. XIV, 1868. Retrieved from https://constitutionus.com/

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Slide #10 Local Administrative Law/Policy/ Rule

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Slide #10 Local Administrative Law/Policy/ Rule

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The Andrews ISD Student Handbook states that the local policy "working with the student and considering disciplinary or academic actions, the student’s case, an Individual Education Plan (IEP) for a student with disabilities under IDEA or an individually designed program for a student with disabilities under Section 504; Compiling statistical data; or Investigating or evaluating programs" (Andrews ISD Student Handbook, 2020). This relates to my topic showing that in our district all professionals are required to follow a students IEP to accommodate the students individualized needs.

Andrews ISD. (2020). Student AISD  Elementary Handbook. Retrieved from

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Code E.6.a. in the ACA Code of Ethics states that "Appropriateness of Instruments Counselors carefully consider the validity, reliability, psychometric limitations, and appropriateness of instruments when selecting assessments and, when possible, use multiple forms of assessment, data, and/or instruments in forming conclusion" (ACA Code of Ethics, 2014). In this case after input from teachers and parents the correct testing can be administered.

ACA Code of Ethics. (2014). American counseling association. Retrieved from

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Slide #13 Bulleted List of Recommendations/ Best Practices for Compliance

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Slide #13 Bulleted List of Recommendations/ Best Practices for Compliance

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The Andrews ISD Student Handbook states that all AISD employees will enforce and follow a child's IEP when put into place.https://docs.google.com/document/d/1EruO4tyvGYUaBtBr8hJHu0GF5ktGMPv7rA84kWFjaU8/edit

The Andrews ISD Employee handbook states that as a district AISD does not discriminate on the basis of race, color, religion, national origin, gender, or disability in providing education services, activities, and programs, including vocational
programs, in accordance with Title VI of the Civil Rights Act of 1964, as amended; Title IX of
the Educational Amendments of 1972; and Section 504 of the Rehabilitation Act of 1973, as
amended. https://doc-0c-2g-docs.googleusercontent.com/docs/securesc/tn73t4i5fvb2ack4ism5o1j4tbndoth7/fvhjog0430q4d5l831jl7jgh9tba4ccn/1601133600000/05569283973964614546/10992317835633039423/0B0Ss54AnCZcKcHkwMTlVUVprRG8?authuser=0&nonce=2sss75g6h95r0&user=10992317835633039423&hash=allj8foet0b14h7kkpd5f7ua9a8b4j1e

Woodworth (2016)- states that when a committee meets to put a plan into place the committee must meet within 30 days of the student being eligible for services.

Woodworth (2016)- expresses that when scheduling a 504 placement meeting to include the student's parent, general education teacher, the school's special education teacher, the principal, and school counselor.

Woodworth (2016)- reassures that although a child is in the 504 program the child will still receive a free appropriate public education, attend extracurricular activities, and other non-academic activities such as recess.

Woodworth (2016)- the goals put into place for the child should be measurable yearly goals and that goals that are achievable in a respectable amount of time.

Resources
ACA Code of Ethics. (2014). American counseling association. Retrieved from www.counseling.org

Andrews ISD. (2020). Student AISD  Elementary Handbook. Retrieved from https://docs.google.com/document/d/1EruO4tyvGYUaBtBr8hJHu0GF5ktGMPv7rA84kWFjaU8/edit

Association, N. (2020). Know Your Rights: Section 504 of the Rehabilitation Act. Retrieved September 26, 2020, from https://www.nea.org/resource-library/know-your-rights-section-504-rehabilitation-act

Board of Educ. v. Rowley, 458 U.S. 176 (1982) Retrieved from https://supreme.justia.com/cases/federal/us/458/176/

Front Matter, 20 USC, Ch.18A
https://uscode.house.gov/browse/prelim@title20/chapter18A&edition=prelim

(Honig v. Doe, 1988). Retrieved from https://www.wrightslaw.com/law/caselaw/ussupct.honig.doe.htm

Mathewson, T. (2017, January 04). Ed Dept civil rights guidance covers IDEA, Rehabilitation Act. Retrieved September 26, 2020, from https://www.educationdive.com/news/ed-dept-civil-rights-guidance-covers-idea-rehabilitation-act/433304/

School Health and Related Service Programs, Tex Educ. Code § 38.033. Retrieved from https://statutes.capitol.texas.gov/Docs/ED/htm/ED.38.htm#38.033

Sparks, S. (2019, November 18). Do Distressed Students Have a Right to Trauma-Sensitive Schooling? Retrieved September 26, 2020, from https://www.edweek.org/ew/articles/2019/09/04/do-distressed-students-have-a-right-to.html

Teacher Standards, 19 Tex. Admin. Code § 149.1001. Retrieved from https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=19&pt=2&ch=149&rl=1001

U.S. Const. amend. XIV, 1868. Retrieved from https://constitutionus.com/

WOODWORTH, J. (2016). Ieps, 504 Plans and Behavior Contracts. Exceptional Parent, 46(9), 54–56.

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The case of the Honig v. Doe represented a student who was expelled from school because of his learning disability. Because of his actions at school, before expelling the child they met to discuss his IEP plan since he was a child with a learning disability.

(Honig v. Doe, 1988)

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The United States Supreme Court 484 U. S. 305

January 20, 1988

Rehnquist, C.J., and Brennan, White, Marshall, Blackmun, Stevens, Scalia and O'Connor, JJ.

JUSTICE BRENNAN delivered the opinion of the Court.

As a condition of federal financial assistance, the Education of the Handicapped Act requires States to ensure a "free appropriate public education" for all disabled children within their jurisdictions. In aid of this goal, the Act establishes a comprehensive system of procedural safeguards designed to ensure parental participation in decisions concerning the education of their disabled children and to provide administrative and judicial review of any decisions with which those parents disagree. Among these safeguards is the so-called "stay-put" provision, which directs that a disabled child "shall remain in [his or her] then current educational placement" pending completion of any review proceedings, unless the parents and state or local educational agencies otherwise agree. 20 U.S.C. 1415(e)(3). Today we must decide whether, in the face of this statutory proscription, state or local school authorities may nevertheless unilaterally exclude disabled children from the classroom for dangerous or disruptive conduct growing out of their disabilities. In addition, we are called upon to decide whether a district court may, in the exercise of its equitable powers, order a State to provide educational services directly to a disabled child when the local agency fails to do so.

In the Education of the Handicapped Act (EHA or the Act), 84 Stat. 175, as amended, 20 U.S.C. 1400 et seq., Congress sought "to assure that all handicapped children have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, [and] to assure that the rights of handicapped children and their parents or guardians are protected." 1400(c). When the law was passed in 1975, Congress had before it ample evidence that such legislative assurances were sorely needed: 21 years after this Court declared education to be "perhaps the most important function of state and local governments," Brown v. Board of Education, 347 U.S. 483, 493 (1954), Congressional studies revealed that better than half of the Nation's eight million disabled children were not receiving appropriate educational services. 1400(b)(3). Indeed, one out of every eight of these children was excluded from the public school system altogether, 1400(b)(4); many others were simply "warehoused" in special classes or were neglectfully shepherded through the system until they were old enough to drop out. See H. R. Rep. No. 94-332, p. 2 (1975). Among the most poorly served of disabled students were emotionally disturbed children: Congressional statistics revealed that for the school year immediately preceding passage of the Act, the educational needs of 82 percent of all children with emotional disabilities went unmet. See S. Rep. No. 94-168, p. 8 (1975) (hereinafter S. Rep.).

In responding to these problems, Congress did not content itself with passage of a simple funding statute. Rather, the EHA confers upon disabled students an enforceable substantive right to public education in participating States, see Board of Education of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176 (1982),1 and conditions federal financial assistance upon a State's compliance with the substantive and procedural goals of the Act. Accordingly, States seeking to qualify for federal funds must develop policies assuring all disabled children the "right to a free appropriate public education," and must file with the Secretary of Education formal plans mapping out in detail the programs, procedures and timetables under which they will effectuate these policies. 20 U.S.C. 1412(1), 1413(a). Such plans must assure that, "to the maximum extent appropriate," States will "mainstream" disabled children, i.e., that they will educate them with children who are not disabled, and that they will segregate or otherwise remove such children from the regular classroom setting "only when the nature or severity of the handicap is such that education in regular classes . . . cannot be achieved satisfactorily." 1412(5).

The primary vehicle for implementing these congressional goals is the "individualized educational program" (IEP), which the EHA mandates for each disabled child. Prepared at meetings between a representative of the local school district, the child's teacher, the parents or guardians, and, whenever appropriate, the disabled child, the IEP sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives. 1401(19). The IEP must be reviewed and, where necessary, revised at least once a year in order to ensure that local agencies tailor the statutorily required "free appropriate public education" to each child's unique needs. 1414(a)(5).

Envisioning the IEP as the centerpiece of the statute's education delivery system for disabled children, and aware that schools had all too often denied such children appropriate educations without in any way consulting their parents, Congress repeatedly emphasized throughout the Act the importance and indeed the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness. See 1400(c), 1401(19), 1412(7), 1415(b)(1)(A), (C), (D), (E), and 1415(b)(2). Accordingly, the Act establishes various procedural safeguards that guarantee parents both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate. These safeguards include the right to examine all relevant records pertaining to the identification, evaluation and educational placement of their child; prior written notice whenever the responsible educational agency proposes (or refuses) to change the child's placement or program; an opportunity to present complaints concerning any aspect of the local agency's provision of a free appropriate public education; and an opportunity for "an impartial due process hearing" with respect to any such complaints. 1415(b)(1), (2).

At the conclusion of any such hearing, both the parents and the local educational agency may seek further administrative review and, where that proves unsatisfactory, may file a civil action in any state or federal court. 1415(c), (e)(2). In addition to reviewing the administrative record, courts are empowered to take additional evidence at the request of either party and to "grant such relief as [they] determine[] is appropriate." 1415(e)(2). The "stay-put" provision at issue in this case governs the placement of a child while these often lengthy review procedures run their course. It directs that:

"During the pendency of any proceedings conducted pursuant to [1415], unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child. . . ." 1415(e)(3).

The present dispute grows out of the efforts of certain officials of the San Francisco Unified School District (SFUSD) to expel two emotionally disturbed children from school indefinitely for violent and disruptive conduct related to their disabilities. In November 1980, respondent John Doe assaulted another student at the Louise Lombard School, a developmental center for disabled children. Doe's April 1980 IEP identified him as a socially and physically awkward 17 year old who experienced considerable difficulty controlling his impulses and anger. Among the goals set out in his IEP was "[i]mprovement in [his] ability to relate to [his] peers [and to] cope with frustrating situations without resorting to aggressive acts." App. 17. Frustrating situations, however, were an unfortunately prominent feature of Doe's school career: physical abnormalities, speech difficulties, and poor grooming habits had made him the target of teasing and ridicule as early as the first grade, id., at 23; his 1980 IEP reflected his continuing difficulties with peers, noting that his social skills had deteriorated and that he could tolerate only minor frustration before exploding. Id., at 15-16.

On November 6, 1980, Doe responded to the taunts of a fellow student in precisely the explosive manner anticipated by his IEP: he choked the student with sufficient force to leave abrasions on the child's neck, and kicked out a school window while being escorted to the principal's office afterwards. Id., at 208. Doe admitted his misconduct and the school subsequently suspended him for five days. Thereafter, his principal referred the matter to the SFUSD Student Placement Committee (SPC or Committee) with the recommendation that Doe be expelled. On the day the suspension was to end, the SPC notified Doe's mother that it was proposing to exclude her child permanently from SFUSD and was therefore extending his suspension until such time as the expulsion proceedings were completed.2 The Committee further advised her that she was entitled to attend the November 25 hearing at which it planned to discuss the proposed expulsion.

After unsuccessfully protesting these actions by letter, Doe brought this suit against a host of local school officials and the state superintendent of public education. Alleging that the suspension and proposed expulsion violated the EHA, he sought a temporary restraining order cancelling the SPC hearing and requiring school officials to convene an IEP meeting. The District Judge granted the requested injunctive relief and further ordered defendants to provide home tutoring for Doe on an interim basis; shortly thereafter, she issued a preliminary injunction directing defendants to return Doe to his then current educational placement at Louise Lombard School pending completion of the IEP review process. Doe re-entered school on December 15, 5 1/2 weeks, and 24 school days, after his initial suspension.

Respondent Jack Smith was identified as an emotionally disturbed child by the time he entered the second grade in 1976. School records prepared that year indicated that he was unable "to control verbal or physical outburst[s]" and exhibited a "[s]evere disturbance in relationships with peers and adults." Id., at 123. Further evaluations subsequently revealed that he had been physically and emotionally abused as an infant and young child and that, despite above average intelligence, he experienced academic and social difficulties as a result of extreme hyperactivity and low self-esteem. Id., at 136, 139, 155, 176. Of particular concern was Smith's propensity for verbal hostility; one evaluator noted that the child reacted to stress by "attempt[ing] to cover his feelings of low self worth through aggressive behavior [,] . . . primarily verbal provocations." Id., at 136.

At the beginning of the next school year, Smith was assigned to a full-day program; almost immediately thereafter he began misbehaving. School officials met twice with his grandparents in October 1980 to discuss returning him to a half-day program; although the grandparents agreed to the reduction, they apparently were never apprised of their right to challenge the decision through EHA procedures. The school officials also warned them that if the child continued his disruptive behavior--which included stealing, extorting money from fellow students, and making sexual comments to female classmates--they would seek to expel him. On November 14, they made good on this threat, suspending Smith for five days after he made further lewd comments. His principal referred the matter to the SPC, which recommended exclusion from SFUSD. As it did in John Doe's case, the Committee scheduled a hearing and extended the suspension indefinitely pending a final disposition in the matter. On November 28, Smith's counsel protested these actions on grounds essentially identical to those raised by Doe, and the SPC agreed to cancel the hearing and to return Smith to a half-day program at A. P. Giannini or to provide home tutoring. Smith's grandparents chose the latter option and the school began home instruction on December 10; on January 6, 1981, an IEP team convened to discuss alternative placements.

After learning of Doe's action, Smith sought and obtained leave to intervene in the suit. The District Court subsequently entered summary judgment in favor of respondents on their EHA claims and issued a permanent injunction. In a series of decisions, the District Judge found that the proposed expulsions and indefinite suspensions of respondents for conduct attributable to their disabilities deprived them of their congressionally mandated right to a free appropriate public education, as well as their right to have that education provided in accordance with the procedures set out in the EHA. The District Judge therefore permanently enjoined the school district from taking any disciplinary action other than a two- or five-day suspension against any disabled child for disability-related misconduct, or from effecting any other change in the educational placement of any such child without parental consent pending completion of any EHA proceedings. In addition, the judge barred the State from authorizing unilateral placement changes and directed it to establish an EHA compliance-monitoring system or, alternatively, to enact guidelines governing local school responses to disability-related misconduct. Finally, the judge ordered the State to provide services directly to disabled children when, in any individual case, the State determined that the local educational agency was unable or unwilling to do so.

On appeal, the Court of Appeals for the Ninth Circuit affirmed the orders with slight modifications. Doe v. Maher, 793 F.2d 1470 (1986). Agreeing with the District Court that an indefinite suspension in aid of expulsion constitutes a prohibited "change in placement" under 1415(e)(3), the Court of Appeals held that the stay-put provision admitted of no "dangerousness" exception and that the statute therefore rendered invalid those provisions of the California Education Code permitting the indefinite suspension or expulsion of disabled children for misconduct arising out of their disabilities. The court concluded, however, that fixed suspensions of up to 30 school days did not fall within the reach of 1415(e)(3), and therefore upheld recent amendments to the state education code authorizing such suspensions.3 Lastly, the court affirmed that portion of the injunction requiring the State to provide services directly to a disabled child when the local educational agency fails to do so.

Respondent John Doe is now 24 years old and, accordingly, is no longer entitled to the protections and benefits of the EHA, which limits eligibility to disabled children between the ages of three and 21. See 20 U.S.C. Sec. 1412(2)(B). It is clear, therefore, that whatever rights to state educational services he may yet have as a ward of the State, see Tr. of Oral Arg. 23, 26, the Act would not govern the State's provision of those services, and thus the case is moot as to him. Respondent Jack Smith, however, is currently 20 and has not yet completed high school. Although at present he is not faced with any proposed expulsion or suspension proceedings, and indeed no longer even resides within the SFUSD, he remains a resident of California and is entitled to a "free appropriate public education" within that State. His claims under the EHA, therefore, are not moot if the conduct he originally complained of is "'capable of repetition, yet evading review.'" Murphy v. Hunt, 455 U.S. 478, 482 (1982). Given Smith's continued eligibility for educational services under the EHA,6 the nature of his disability, and petitioner's insistence that all local school districts retain residual authority to exclude disabled children for dangerous conduct, we have little difficulty concluding that there is a "reasonable expectation," ibid., that Smith would once again be subjected to a unilteral "change in placement" for conduct growing out of his disabilities were it not for the state-wide injunctive relief issued below.

Our cases reveal that, for purposes of assessing the likelihood that state authorities will re-inflict a given injury, we generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury. See Los Angeles v. Lyons, 461 U.S. 95, 105-106 (1983) (no threat that party seeking injunction barring police use of chokeholds would be stopped again for traffic violation or other offense, or would resist arrest if stopped); Hunt v. Murphy, supra, at 484 (no reason to believe that party challenging denial of pre-trial bail "will once again be in a position to demand bail"); O'Shea v. Littleton, 414 U.S. 488, 497 (1974) (unlikely that parties challenging discriminatory bond-setting, sentencing, and jury-fee practices would again violate valid criminal laws).

No such reluctance, however, is warranted here. It is respondent Smith's very inability to conform his conduct to socially acceptable norms that renders him "handicapped" within the meaning of the EHA. See 20 U.S.C. 1401(1); 34 CFR 300.5(b)(8) (1987). As noted above, the record is replete with evidence that Smith is unable to govern his aggressive, impulsive behavior--indeed, his notice of suspension acknowledged that "Jack's actions seem beyond his control." App. 152. In the absence of any suggestion that respondent has overcome his earlier difficulties, it is certainly reasonable to expect, based on his prior history of behavioral problems, that he will again engage in classroom misconduct. Nor is it reasonable to suppose that Smith's future educational placement will so perfectly suit his emotional and academic needs that further disruptions on his part are improbable. Although Justice Scalia suggests in his dissent, post, at 3, that school officials are unlikely to place Smith in a setting where they cannot control his misbehavior, any efforts to ensure such total control must be tempered by the school system's statutory obligations to provide respondent with a free appropriate public education in "the least restrictive environment," 34 CFR 300.552(d) (1987); to educate him, "to the maximum extent appropriate," with children who are not disabled, 20 U.S.C. 1412(5); and to consult with his parents or guardians, and presumably with respondent himself, before choosing a placement. 1401(19), 1415(b). Indeed, it is only by ignoring these mandates, as well as Congress' unquestioned desire to wrest from school officials their former unilateral authority to determine the placement of emotionally disturbed children, see infra, at 15-16, that the dissent can so readily assume that respondent's future placement will satisfactorily prevent any further dangerous conduct on his part. Overarching these statutory obligations, moreover, is the inescapable fact that the preparation of an IEP, like any other effort at predicting human behavior, is an inexact science at best. Given the unique circumstances and context of this case, therefore, we think it reasonable to expect that respondent will again engage in the type of misconduct that precipitated this suit.

We think it equally probable that, should he do so, respondent will again be subjected to the same unilateral school action for which he initially sought relief. In this regard, it matters not that Smith no longer resides within the SFUSD. While the actions of SFUSD officials first gave rise to this litigation, the District Judge expressly found that the lack of a state policy governing local school responses to disability-related misconduct had led to, and would continue to result in, EHA violations, and she therefore enjoined the state defendant from authorizing, among other things, unilateral placement changes. App. 247-248. She of course also issued injunctions directed at the local defendants, but they did not seek review of those orders in this Court. Only petitioner, the State Superintendent of Public Instruction, has invoked our jurisdiction, and he now urges us to hold that local school districts retain unilateral authority under the EHA to suspend or otherwise remove disabled children for dangerous conduct. Given these representations, we have every reason to believe that were it not for the injunction barring petitioner from authorizing such unilateral action, respondent would be faced with a real and substantial threat of such action in any California school district in which he enrolled. Cf. Los Angeles v. Lyons, supra, at 106 (respondent lacked standing to seek injunctive relief because he could not plausibly allege that police officers choked all persons whom they stopped, or that the City "AUTHORIZED police officers to act in such manner" (emphasis added)). Certainly, if the SFUSD's past practice of unilateral exclusions was at odds with state policy and the practice of local school districts generally, petitioner would not now stand before us seeking to defend the right of all local school districts to engage in such aberrant behavior.[7]

The language of 1415(e)(3) is unequivocal. It states plainly that during the pendency of any proceedings initiated under the Act, unless the state or local educational agency and the parents or guardian of a disabled child otherwise agree, "the child SHALL remain in the then current educational placement." 1415(e)(3) (emphasis added). Faced with this clear directive, petitioner asks us to read a "dangerousness" exception into the stay-put provision on the basis of either of two essentially inconsistent assumptions: first, that Congress thought the residual authority of school officials to exclude dangerous students from the classroom too obvious for comment; or second, that Congress inadvertently failed to provide such authority and this Court must therefore remedy the oversight. Because we cannot accept either premise, we decline petitioner's invitation to re-write the statute.

Petitioner's arguments proceed, he suggests, from a simple, common-sense proposition: Congress could not have intended the stay-put provision to be read literally, for such a construction leads to the clearly unintended, and untenable, result that school districts must return violent or dangerous students to school while the often lengthy EHA proceedings run their course. We think it clear, however, that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. In so doing, Congress did not leave school administrators powerless to deal with dangerous students; it did, however, deny school officials their former right to "self-help," and directed that in the future the removal of disabled students could be accomplished only with the permission of the parents or, as a last resort, the courts.

As noted above, Congress passed the EHA after finding that school systems across the country had excluded one out of every eight disabled children from classes. In drafting the law, Congress was largely guided by the recent decisions in Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (1972), and PARC, 343 F. Supp. 279 (1972), both of which involved the exclusion of hard-to-handle disabled students. Mills in particular demonstrated the extent to which schools used disciplinary measures to bar children from the classroom. There, school officials had labeled four of the seven minor plaintiffs "behavioral problems," and had excluded them from classes without providing any alternative education to them or any notice to their parents. 348 F. Supp., at 869-870. After finding that this practice was not limited to the named plaintiffs but affected in one way or another an estimated class of 12,000 to 18,000 disabled students, id., at 868-869, 875, the District Court enjoined future exclusions, suspensions, or expulsions "on grounds of discipline." Id., at 880.

Our conclusion that 1415(e)(3) means what it says does not leave educators hamstrung. The Department of Education has observed that, "[w]hile the [child's] placement may not be changed [during any complaint proceeding], this does not preclude the agency from using its normal procedures for dealing with children who are endangering themselves or others." Comment following 34 CFR 300.513 (1987). Such procedures may include the use of study carrels, time-outs, detention, or the restriction of privileges. More drastically, where a student poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 school days.[8] This authority, which respondent in no way disputes, not only ensures that school administrators can protect the safety of others by promptly removing the most dangerous of students, it also provides a "cooling down" period during which officials can initiate IEP review and seek to persuade the child's parents to agree to an interim placement. And in those cases in which the parents of a truly dangerous child adamantly refuse to permit any change in placement, the 10-day respite gives school officials an opportunity to invoke the aid of the courts under 1415(e)(2), which empowers courts to grant any appropriate relief.

Petitioner contends, however, that the availability of judicial relief is more illusory than real, because a party seeking review under 1415(e)(2) must exhaust time-consuming administrative remedies, and because under the Court of Appeals' construction of 1415(e)(3), courts are as bound by the stay-put provision's "automatic injunction," 793 F.2d, at 1486, as are schools.[9] It is true that judicial review is normally not available under 1415(e)(2) until all administrative proceedings are completed, but as we have previously noted, parents may by-pass the administrative process where exhaustion would be futile or inadequate. See Smith v. Robinson, 468 U.S. 992, 1014, n. 17 (1984) (citing cases); see also 121 Cong. Rec. 37416 (1975) (remarks of Sen. Williams) ("[E]xhaustion . . . should not be required . . . in cases where such exhaustion would be futile either as a legal or practical matter"). While may of the EHA's procedural safeguards protect the rights of parents and children, schools can and do seek redress through the administrative review process, and we have no reason to believe that Congress meant to require schools alone to exhaust in all cases, no matter how exigent the circumstances. The burden in such cases, of course, rests with the school to demonstrate the futility or inadequacy of administrative review, but nothing in 1415(e)(2) suggests that schools are completely barred from attempting to make such a showing. Nor do we think that 1415(e)(3) operates to limit the equitable powers of district courts such that they cannot, in appropriate cases, temporarily enjoin a dangerous disabled child from attending school.

As the EHA's legislative history makes clear, one of the evils Congress sought to remedy was the unilateral exclusion of disabled children by SCHOOLS, not courts, and one of the purposes of 1415(e)(3), therefore, was "to prevent SCHOOL officials from removing a child from the regular public school classroom over the parents' objection pending completion of the review proceedings." Burlington School Committee v. Massachusetts Dept. of Education, 471 U.S., at 373 (emphasis added). The stay-put provision in no way purports to limit or pre-empt the authority conferred on courts by 1415(e)(2), see Doe v. Brookline School Committee, 722 F.2d 910, 917 (CA1 1983); indeed, it says nothing whatever about judicial power.

In short, then, we believe that school officials are entitled to seek injunctive relief under 1415(e)(2) in appropriate cases. In any such action, 1415(e)(3) effectively creates a presumption in favor of the child's current educational placement which school officials can overcome only by showing that maintaining the child in his or her current placement is substantially likely to result in injury either to himself or herself, or to others. In the present case, we are satisfied that the District Court, in enjoining the state and local defendants from indefinitely suspending respondent or otherwise unilaterally altering his then current placement, properly balanced respondent's interest in receiving a free appropriate public education in accordance with the procedures and requirements of the EHA against the interests of the state and local school officials in maintaining a safe learning environment for all their students.[10]

We believe the courts below properly construed and applied 1415(e)(3), except insofar as the Court of Appeals held that a suspension in excess of 10 school days does not constitute a "change in placement."[11] We therefore affirm the Court of Appeals' judgment on this issue as modified herein. Because we are equally divided on the question whether a court may order a State to provide services directly to a disabled child where the local agency has failed to do so, we affirm the Court of Appeals' judgment on this issue as well.

[1] Congress' earlier efforts to ensure that disabled students received adequate public education had failed in part because the measures it adopted were largely hortatory. In the 1966 amendments to the Elementary and Secondary Education Act of 1965, Congress established a grant program "for the purpose of assisting the States in the initiation, expansion, and improvement of programs and projects . . . for the education of handicapped children." Pub. L. 89-750, 161, 80 Stat. 1204. It repealed that program four years later and replaced it with the original version of the Education of the Handicapped Act, Pub. L. 91-230, 84 Stat. 175, Part B of which contained a similar grant program. Neither statute, however, provided specific guidance as to how States were to use the funds, nor did they condition the availability of the grants on compliance with any procedural or substantive safeguards. In amending the EHA to its present form, Congress rejected its earlier policy of "merely establish[ing] an unenforceable goal requiring all children to be in school." 121 Cong. Rec. 37417 (1975) (remarks of Sen. Schweiker). Today, all 50 states and the District of Columbia receive funding assistance under the EHA. U.S. Dept. of Education, Ninth Annual Report to Congress on Implementation of Education of the Handicapped Act (1987).

[2] California law at the time empowered school principals to suspend students for no more than five consecutive school days, Cal. Educ. Code Ann. 48903(a) (West 1978), but permitted school districts seeking to expel a suspended student to "extend the suspension until such time as [expulsion proceedings were completed]; provided, that [it] has determined that the presence of the pupil at the school or in an alternative school placement would cause a danger to persons or property or a threat of disrupting the instructional process." 48903(h). The State subsequently amended the law to permit school districts to impose longer initial periods of suspension. See n. 3, infra.

[3] In 1983, the State amended its Education Code to permit school districts to impose initial suspensions of 20, and in certain circumstances, 30 school days. Cal. Educ. Code Ann. 48912(a), 48903 (West Supp. 1988). The legislature did not alter the indefinite suspension authority which the SPC exercised in this case, but simply incorporated the earlier provision into a new section. See 48911(g).

[4] At the time respondent Doe initiated this suit, Wilson Riles was the California Superintendent of Public Instruction. Petitioner Honig succeeded him in office.

[5] We note that both petitioner and respondents believe that this case presents a live controversy. See Tr. of Oral Arg. 6, 27-31. Only the United States, appearing as amicus curiae, urges that the case is presently nonjusticiable. Id., at 21.

[6] Notwithstanding respondent's undisputed right to a free appropriate public education in California, Justice Scalia argues in dissent that there is no "demonstrated probability" that Smith will actually avail himself of that right because his counsel was unable to state affirmatively during oral argument that her client would seek to re-enter the state school system. See post, at 2. We believe the dissent overstates the stringency of the "capable of repetition" test. Although Justice Scalia equates "reasonable expectation" with "demonstrated probability," the very case he cites for this proposition described these standards in the distinctive, see Murphy v. Hunt, 455 U.S., at 482 ("[T]here must be a 'reasonable expectation' OR a 'demonstrated probability' that the same controversy will recur" (emphasis added)), and in numerous cases decided both before and since Hunt we have found controversies capable of repetition based on expectations that, while reasonable, were hardly demonstrably probable. See e.g., Burlington Northern R. Co. v. Maintenance of Way Employees, 481 U.S. ____, ____, n. 4 (1987) (parties "reasonably likely" to find themselves in future disputes over collective bargaining agreement); California Coastal Comm'n v. Granite Rock Co., 480 U.S. ____, ____ (1987) (O'Connor, J.) ("likely" that respondent would again submit mining plans that would trigger contested state permit requirement); Press-Enterprise Co. v. Superior Court of Cal., Riverside County, 478 U.S. 1, 6 (1986) ("It can reasonably be assumed" that newspaper publisher will be subjected to similar closure order in the future); Globe Newspaper Co. v. Superior Court of Norfolk County, 457 U.S. 596, 603 (1982) (same); United States Parole Comm'n v. Geraghty, 445 U.S. 388, 398 (1980) (case not moot where litigant "faces some likelihood of becoming involved in same controversy in the future") (dicta). Our concern in these cases, as in all others involving potentially moot claims, was whether the controversy was capable of repetition and not, as the dissent seems to insist, whether the claimant had demonstrated that a recurrence of the dispute was more probable than not. Regardless, then, of whether respondent has established with mathematical precision the likelihood that he will enroll in public school during the next two years, we think there is at the very least a reasonable expectation that he will exercise his rights under the EHA. In this regard, we believe respondent's actions over the course of the last seven years speak louder than his counsel's momentary equivocation during oral argument. Since 1980, he has sought to vindicate his right to an appropriate public education that is not only free of charge, but free from the threat that school officials will unilaterally change his placement or exclude him from class altogether. As a disabled young man, he has as at least as great a need of a high school education and diploma as any of his peers, and his counsel advises us that he is awaiting the outcome of this case to decide whether to pursue his degree. Tr. Oral Arg. 23-24. Under these circumstances, we think it not only counterintuitive but unreasonable to assume that respondent will forgo the exercise of a right that he has for so long sought to defend. Certainly we have as much reason to expect that respondent will re-enter the California school system as we had to assume that Jane Roe would again both have an unwanted pregnancy and wish to exercise her right to an abortion. See Roe v. Wade, 410 U.S. 113, 125 (1973).

[7] Petitioner concedes that the school district "made a number of procedural mistakes in its eagerness to protect other students from Doe and Smith." Reply Brief for Petitioner 6. According to petitioner, however, unilaterally excluding respondents from school was not among them; indeed, petitioner insists that the SFUSD acted properly in removing respondents and urges that the stay-put provision "should not be interpreted to require a school district to maintain such dangerous children with other children." Id., at 6-7.

[9] Petitioner also notes that in California, schools may not suspend any given student for more than a total of 20, and in certain special circumstances 30, school days in a single year, see Cal. Educ. Code Ann. 48903 (West Supp. 1988); he argues, therefore, that a school district may not have the option of imposing a 10-day suspension when dealing with an obstreperous child whose previous suspensions for the year total 18 or 19 days. The fact remains, however, that state law does not define the scope of 1415(e)(3). There may be cases in which a suspension that is otherwise valid under the stay-put provision would violate local law. The effect of such a violation, however, is a question of state law upon which we express no view.

[10] We therefore reject the United States' contention that the District Judge abused her discretion in enjoining the local school officials from indefinitely suspending respondent pending completion of the expulsion proceedings. Contrary to the Government's suggestion, the District Judge did not view herself bound to enjoin any and all violations of the stay-put provision, but rather, consistent with the analysis we set out above, weighed the relative harms to the parties and found that the balance tipped decidedly in favor of respondent. App. 222-223. We of course do not sit to review the factual determinations underlying that conclusion. We do note, however, that in balancing the parties' respective interests, the District Judge gave proper consideration to respondent's rights under the EHA. While the Government complains that the District Court indulged an improper presumption of irreparable harm to respondent, we do not believe that school officials can escape the presumptive effect of the stay-put provision simply by violating it and forcing parents to petition for relief. In any suit brought by parents seeking injunctive relief for a violation of 1415(e)(3), the burden rests with the school district to demonstrate that the educational status quo must be altered.

[11] See n. 8, supra.

Chief Justice Rehnquist, concurring.

I write separately on the mootness issue in this case to explain why I have joined Part II of the Court's opinion, and why I think reconsideration of our mootness jurisprudence may be in order when dealing with cases decided by this Court.

The present rule in federal cases is that an actual controversy must exist at all stages of appellate review, not merely at the time the complaint is filed. This doctrine was clearly articulated in United States v. Munsingwear, 340 U.S. 36 (1950), in which Justice Douglas noted that "[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss." Id., at 39. The rule has been followed fairly consistently over the last 30 years. See, e.g., Preiser v. Newkirk, 422 U.S. 395 (1975); SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972).

All agree that this case was "very much alive," ante, at 10, when the action was filed in the District Court, and very probably when the Court of Appeals decided the case. It is supervening events since the decision of the Court of Appeals which have caused the dispute between the majority and the dissent over whether this case is moot. Therefore, all that the Court actually holds is that these supervening events do not deprive this Court of the authority to hear the case. I agree with that holding, and would go still further in the direction of relaxing the test of mootness where the events giving rise to the claim of mootness have occurred after our decision to grant certiorari or to note probable jurisdiction.

The Court implies in its opinion, and the dissent expressly states, that the mootness doctrine is based upon Art. III of the Constitution. There is no doubt that our recent cases have taken that position. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546 (1976); Preiser v. Newkirk, supra, at 401; Sibron v. New York, 392 U.S. 40, 57 (1968); Liner v. Jafco, Inc., 375 U.S. 301, 306, n. 3 (1964). But it seems very doubtful that the earliest case I have found discussing mootness, Mills v. Green, 159 U.S. 651 (1895), was premised on constitutional constraints; Justice Gray's opinion in that case nowhere mentions Art. III.

If it were indeed Art. III which--by reason of its requirement of a case or controversy for the exercise of federal judicial power--underlies the mootness doctrine, the "capable of repetition, yet evading review" exception relied upon by the Court in this case would be incomprehensible. Article III extends the judicial power of the United States only to cases and controversies; it does not except from this requirement other lawsuits which are "capable of repetition, yet evading review." If our mootness doctrine were forced upon us by the case or controversy requirement of Art. III itself, we would have no more power to decide lawsuits which are "moot" but which also raise questions which are capable of repetition but evading review than we would to decide cases which are "moot" but raise no such questions.

The exception to mootness for cases which are "capable of repetition, yet evading review," was first stated by this Court in Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911). There the Court enunciated the exception in the light of obvious pragmatic considerations, with no mention of Art. III as the principle underlying the mootness doctrine:

"The questions involved in the orders of the Interstate Commerce Commission are usually continuing (as are manifestly those in the case at bar) and their consideration ought not to be, as they might be, defeated, by short-term orders, capable of repetition, yet evading review, and at one time the Government and at another time the carriers have their rights determined by the Commission without a chance of redress." Id., at 515.

The exception was explained again in Moore v. Ogilvie, 394 U.S. 814, 816 (1969):

"The problem is therefore 'capable of repetition, yet evading review.' The need for its resolution thus reflects a continuing controversy in the federal-state area where our 'one man, one vote' decisions have thrust" (citation omitted).

It is also worth noting that Moore v. Ogilvie involved a question which had been mooted by an election, just as did Mills v. Green some 70 years earlier. But at the time of Mills, the case originally enunciating the mootness doctrine, there was no thought of any exception for cases which were "capable of repeition, yet evading review."

I believe that we should adopt an additional exception to our present mootness doctrine for those cases where the events which render the case moot have supervened since our grant of certiorari or noting of probable jurisdiction in the case. Dissents from denial of certiorari in this Court illustrate the proposition that the roughly 150 or 160 cases which we decide each year on the merits are less than the number of cases warranting review by us if we are to remain, as Chief Justice Taft said many years ago, "the last word on every important issue under the Constitution and the statutes of the United States." But these unique resources--the time spent preparing to decide the case by reading briefs, hearing oral argument, and conferring--are squandered in every case in which it becomes apparent after the decisional process is underway that we may not reach the question presented. To me the unique and valuable ability of this Court to decide a case--we are, at present, the only Art. III court which can decide a federal question in which a way as to bind all other courts--is a sufficient reason either to abandon the doctrine of mootness altogether in cases which this Court has decided to review, or at least to relax the doctrine of mootness in such a manner as the dissent accuses the majority of doing here. I would leave the mootness doctrine as established by our cases in full force and effect when applied to the earlier stages of a lawsuit, but I believe that once this Court has undertaken a consideration of a case, an exception to that principle is just as much warranted as where a case is "capable of repetition, yet evading review."

Justice Scalia, with whom Justice O'Connor joins, dissenting.

Without expressing any views on the merits of this case, I respectfully dissent because in my opinion we have no authority to decide it. I think the controversy is moot.

Jurisdiction on the basis that a dispute is "capable of repetition, yet evading review" is limited to the "exceptional situatio[n]," Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), where the following two circumstances simultaneously occur: "'(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.'" Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam), quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam). The second of these requirements is not met in this case.

In Roe v. Wade, 410 U.S. 113, 125 (1973), we found that the "human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete," so that "pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied." Roe, at least one other abortion case, see Doe v. Bolton, 410 U.S. 179, 187 (1973), and some of our election law decisions, see Rosario v. Rockefeller, 410 U.S. 752, 756, n. 5 (1973); Dunn v. Blumstein, 405 U.S. 330, 333, n. 2 (1972), differ from the body of our mootness jurisprudence not in accepting less than a probability that the issue will recur, in a manner evading review, between the same parties; but in dispensing with the same-party requirement entirely, focusing instead upon the great likelihood that the issue will recur between the defendant and the other members of the public at large without ever reaching us. Arguably those cases have been limited to their facts, or to the narrow areas of abortion and election rights, by our more recent insistence that, at least in the absence of a class action, the "capable of repetition" doctrine applies only where "there [is] a reasonable expectation that the SAME COMPLAINING PARTY would be subjected to the same action again." Hunt, 455 U.S., at 482 (emphasis added), quoting Weinstein, 423 U.S., at 149; see Burlington Northern R. Co., supra, at ____, n. 4; Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 187 (1979). If those earlier cases have not been so limited, however, the conditions for their application do not in any event exist here. There is no extraordinary improbability of the present issue's reaching us as a traditionally live controversy. It would have done so in this very case if Smith had not chosen to leave public school. In sum, on any analysis, the proposition the Court asserts in the present case--that probability need not be shown in order to establish the "same-party-recurrence" exception to mootness--is a significant departure from settled law.

If our established mode of analysis were followed, the conclusion that a live controversy exists in the present case would require a demonstrated probability that all of the following events will occur: (1) Smith will return to public school; (2) he will be placed in an educational setting that is unable to tolerate his dangerous behavior; (3) he will again engage in dangerous behavior; and (4) local school officials will again attempt unilaterally to change his placement and the state defendants will fail to prevent such action. The Court spends considerable time establishing that the last two of these events are likely to recur, but relegates to a footnote its discussion of the first event, upon which all others depend, and only briefly alludes to the second. Neither the facts in the record, nor even the extra-record assurances of counsel, establish a demonstrated probability of either of them.

With respect to whether Smith will return to school, at oral argument Smith's counsel forthrightly conceded that she "cannot represent whether in fact either of these students will ask for further education from the Petitioners." Tr. of Oral Arg. 23. Rather, she observed, respondents would "look to [our decision in this case] to find out what will happen after that." Id., at 23-24. When pressed, the most counsel would say was that, in her view, the 20-year-old Smith could seek to return to public school because he has not graduated, he is handicapped, and he has a right to an education. Id., at 27. I do not perceive the principle that would enable us to leap from the proposition that Smith could reenter public school to the conclusion that it is a demonstrated probability he will do so.

The Court nevertheless concludes that "there is at the very least a reasonable expectation" that Smith will return to school. Ante, at 12, n. 6. I cannot possibly dispute that on the basis of the Court's terminology. Once it is accepted that a "reasonable expectation" can exist without a demonstrable probability that the event in question will occur, the phrase has been deprived of all meaning, and the Court can give it whatever application it wishes without fear of effective contradiction. It is worth pointing out, however, how slim are the reeds upon which this conclusion of "reasonable expectation" (whatever that means) rests. The Court bases its determination on three observations from the record and oral argument. First, it notes that Smith has been pressing this lawsuit since 1980. It suffices to observe that the equivalent argument can be made in every case that remains active and pending; we have hitherto avoided equating the existence of a case or controversy with the existence of a lawsuit. Second, the Court observes that Smith has "as great a need of a high school education and diploma as any of his peers." Ibid. While this is undoubtedly good advice, it hardly establishes that the 20-year-old Smith is likely to return to high school, much less to public high school. Finally, the Court notes that counsel "advises us that [Smith] is awaiting the outcome of this case to decide whether to pursue his degree." Ibid. Not only do I not think this establishes a current case or controversy, I think it a most conclusive indication that no current case or controversy exists. We do not sit to broaden decision-making options, but to adjudicate the lawfulness of acts that have happened or, at most, are about to occur.

The conclusion that the case is moot is reinforced, moreover, when one considers that, even if Smith does return to public school, the controversy will still not recur unless he is again placed in an educational setting that is unable to tolerate his behavior. It seems to me not only not demonstrably probable, but indeed quite unlikely, given what is now known about Smith's behavioral problems, that local school authorities would again place him in an educational setting that could not control his dangerous conduct, causing a suspension that would replicate the legal issues in this suit. The majority dismisses this further contingency by noting that the school authorities have an obligation under the EHA to provide an "appropriate" education in "the least restrictive environment." Ante, at 14. This means, however, the least restrictive environment appropriate for the particular child. The Court observes that "the preparation of an [individualized educational placement]" is "an inexact science at best," ante, at 14, thereby implying that the school authorities are likely to get it wrong. Even accepting this assumption, which seems to me contrary to the premises of the Act, I see no reason further to assume that they will get it wrong by making the same mistake they did last time--assigning Smith to too unrestrictive an environment, from which he will thereafter be suspended--rather than by assigning him to too restrictive an environment. The latter, which seems to me more likely than the former (although both combined are much less likely than a correct placement), might produce a lawsuit, but not a lawsuit involving the issues that we have before us here.

The Chief Justice joins the majority opinion on the ground, not that this case is not moot, but that where the events giving rise to the mootness have occurred after we have granted certiorari we may disregard them, since mootness is only a prudential doctrine and not part of the "case or controversy" requirement of Art. III. I do not see how that can be. There is no more reason to intuit that mootness is merely a prudential doctrine than to intuit that initial standing is. Both doctrines have equivalently deep roots in the common-law understanding, and hence the constitutional understanding of what makes a matter appropriate for judicial disposition. See Flast v. Cohen, 392 U.S. 83, 95 (1968) (describing mootness and standing as various illustrations of the requirement of "justiciability" in Art. III).

"[T]he court is not EMPOWERED to decide moot questions or abstract propositions, or to declare . . . principles or rules of law which cannot affect the result as to the thing in issue in the case before it. No stipulation of parties or counsel . . . can enlarge the POWER, or affect the duty, of the court in this regard." California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314 (1893) (Gray, J.) (emphasis added).

If it seems peculiar to the modern lawyer that our 19th century mootness cases make no explicit mention of Art. III, that is a peculiarity shared with our 19th century, and even our early 20th century, standing cases. As late as 1919, in dismissing a suit for lack of standing we said simply:

"Considerations of propriety, as well as long-established practice, demand that we refrain from passing upon the constitutionality of an act of Congress unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it." Blaire v. United States, 250 U.S. 273, 279 (1919).

See also, e.g., Standard Stock Food Co. v. Wright, 225 U.S. 540, 550 (1912); Southern Ry. Co. v. King, 217 U.S. 524, 534 (1910); Turpin v. Lemon, 187 U.S. 51, 60-61 (1902); Tyler v. Judges of Court of Registration, 179 U.S. 405, 409 (1900). The same is also true of our early cases dismissing actions lacking truly adverse parties, that is, collusive actions. See, e.g., Cleveland v. Chamberlain, 1 Black 419, 425-426 (1862); Lord v. Veazie, 8 How. 251, 254-256 (1850). The explanation for this ellipsis is that the courts simply chose to refer directly to the traditional, fundamental limitations upon the powers of common-law courts, rather than referring to Art. III which in turn adopts those limitations through terms ("The judicial Power"; "Cases"; "Controversies") that have virtually no meaning except by reference to that tradition. The ultimate circularity, coming back in the end to tradition, is evident in the statement by Justice Field:

"By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case." In re Pacific R. Commn., 32 F. 241, 255 (CCND Cal. 1887).

See also 2 M. Farrand, Records of the Federal Convention of 1787, p. 430 (rev. ed. 1966):

"Docr. Johnson moved to insert the words 'this Constitution and the' before the word 'laws'

"Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.

"The motion of Docr. Johnson was agreed to nem: con: it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature--"

In sum, I cannot believe that it is only our prudence, and nothing inherent in the understood nature of "The judicial Power," U.S. Const., Art. III, 1, that restrains us from pronouncing judgment in a case that the parties have settled, or a case involving a nonsurviving claim where the plaintiff has died, or a case where the law has been changed so that the basis of the dispute no longer exists, or a case where conduct sought to be enjoined has ceased and will not recur. Where the conduct has ceased for the time being but there is a demonstrated probability that it will recur, a real-life controversy between parties with a personal stake in the outcome continues to exist, and Art. III is no more violated than it is violated by entertaining a declaratory judgment action. But that is the limit of our power. I agree with The Chief Justice to this extent: the "yet evading review" portion of our "capable of repetition yet evading review" test is prudential; whether or not that criterion is met, a justiciable controversy exists. But the probability of recurrence between the same parties is essential to our jurisdiction as a court, and it is that deficiency which the case before us presents.

It is assuredly frustrating to find that a jurisdictional impediment prevents us from reaching the important merits issues that were the reason for our agreeing to hear this case. But we cannot ignore such impediments for purposes of our appellate review without simultaneously affecting the principles that govern district courts in their assertion or retention of original jurisdiction. We thus do substantial harm to a governmental structure designed to restrict the courts to matters that actually affect the litigants before them.

Listen to the Oral Argument (MP3 download)

This and other decisions in special education cases from the U. S. Supreme Court are in Wrightslaw: Special Education Law, 2nd Edition.

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honig v. doe 484 u. s. 305 discipline emotional disorders behavior disorders u. s. supreme court

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In Honig v. Doe, the Supreme Court issued a strong decision in a discipline case on behalf of emotionally disturbed children with academic and social problems and clarified procedural safeguards designed to protect children and their families, parental role, stay put, and that schools shall not expel children for behaviors related to their disabilities.