TASB LEGAL ASSISTANCE FUND

The Honorable Ken Paxton

ATTN: Opinion Committee
Attorney General of Texas
P.O. Box 12548
Austin, TX 78711

Sent via Email and US Mail

Re:

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

Dear General Paxton:

On May 31, 2016, Texas Lieutenant Governor Dan Patrick wrote your office to ask about the
legality of Fort Worth Independent School Districts Transgender Student Guidelines.
Specifically, the Lieutenant Governor asked: (1) whether the policy violated Chapter 26 of the
Texas Education Code, or any other law, in keeping student information from parents, and (2)
whether the Superintendent had the authority to adopt the policy unilaterally without
adoption by school board vote and without public comment.
The Texas Association of School Boards Legal Assistance Fund (TASB LAF) writes to address
only the second question regarding the adoption of the guidelines. We write because Texas law
specifically charges public school superintendents with the establishment of administrative
regulations. Widespread school district policy and practice reflects state law by authorizing
superintendents to adopt administrative regulations, including guidelines, and thousands of
such regulations are in place around the state. We write to provide background about this
statewide reality and to ask that your opinion not cast into doubt the legality of the thousands
of unrelated administrative regulations and guidelines currently guiding operations in the
school districts of Texas.
Generally speaking, the Texas Education Code charges school district boards of trustees with
the adoption of policy (to say what the district should do), and superintendents with the
establishment of administrative regulations (to say how the district should accomplish the
Nearly 800 public school districts in Texas are members of the TASB LAF, which advocates the interest of school
districts in matters with potential statewide impact. The TASB LAF is governed by three organizations: the Texas
Association of School Boards, Inc. (TASB), the Texas Association of School Administrators (TASA), and the Texas
Council of School Attorneys (CSA), TASB is a nonprofit corporation whose members are the 1,029 public school
boards in Texas. As locally elected boards of trustees, TASBs members are responsible for the governance of Texas
public schools, TASA represents the states school superintendents and other administrators responsible for carrying
out the education policies adopted by their local boards of trustees. CSA is comprised of attorneys who represent
more than ninety percent of the public school districts in Texas.

boards policies). Administrative regulations, com

monly called guidelines, are the responsibility
of administrative staff, not the school board, Regula
tory documents commit standard practices
to writing in order to give staff adequate notice of
expectations and to create consistency in
administrative practices. Administrative regulations
are enforceable within the local school
district to the extent they are aligned with boar
d policy.
These common practices have their root in Texas
law (emphasis added throughout):
Texas Education Code section 11.011. ORGANIZAT
ION. The board of trustees of an
independent school district, the superintendent of
the district, the campus
administrators, and the district- and campus-le
vel committees established under
Section 11.251 shall contribute to the operation
of the district in the manner provided
by this code and by the board of trustees of the distr
ict in a manner not inconsistent
with this code.
Texas Education Code section 11.051. GOVERNANCE
OF INDEPENDENT SCHOOL
DISTRICT; NUMBER OF TRUSTEES. (a) An independ
ent school district is governed by a
board of trustees who, as a body corporate, shall:

(1) oversee the management of the district; and

(2) ensure that the superintendent implements and
monitors plans, procedures,
programs, and systems to achieve appropriate, clearly
defined, and desired
results in the major areas of district operations.
Texas Education Code section 11.1512. COLLABOR
ATION BETWEEN BOARD AND
SUPERINTENDENT. (a) In relation to the superintenden
t of the school district, the board
of trustees of the district has the powers and dutie
s specified by Sections 11.1511(b)
and (c). The superintendent shall, on a day-to-day basis
, ensure the implementation of
the policies created by the board.
Texas Education Code section 11.201. SUPERINTEN
DENTS. (a) The superintendent is the
educational leader and the chief executive officer
of the school district.

(d) The duties of the superintendent include:

(5) managing the day-to-day operations of the distr
ict as its administrative
manager, including implementing and monitoring
plans, procedures, programs,
and systems to achieve clearly defined and desired
results in major areas of
district operations...
(7) preparing recommendations for policies to be
adopted by the board of
trustees and overseeing the implementation of adop
ted policies;
(8) developing or causing to be developed appropria
te administrative
regulations to implement policies established by the
board of trustees[.]

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

ADMINISTRATIVE REGULATIONS

DEVELOPMENT

BP
LOCAL

The Superintendent and administrative staff shall be responsible

for developing and enforcing procedures for the operation of the
District. These procedures shail constitute the administrative regu
lations of the District and shall consist of guidelines, handbooks,
manuals, forms, and any other documents defining standard oper
ating procedures.
The Superintendent or designee shall ensure that administrative
regulations are kept up to date and are consistent with Board poli
cy. The Superintendent or designee shall resolve any discrepan
cies among conflicting administrative regulations. In case of con
flict between administrative regulations and policy, policy shall
prevail.

NO BOARD ACTION

Amnistratve reguiauons are suoject to Board review Out shah nor

be adopted by the Board.

AVAILABILiTY

All administrative regulations shall be made accessible to staff,

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

Identical board policies are in place in approximately 965 school districts in Texas.
These widespread policies reflect the governance structure of Texas public school districts in
which school boards oversee the management, rather than manage, school operations.
School boards are informed, but not involved, in the establishment of administrative
procedures. This structure is reflected in the State Board of Educations Framework for School
Board 2
Development, which provides: The Board focuses its actions on policy making,
planning, and evaluation, and restricts its involvement in management to the responsibility of
oversight.
In April 2016, the administration of the Fort Worth ISD adopted a document entitled
Transgender Student Guidelines, with directives to school employees regarding how to respond
to certain requests for accommodation by transgender students. The document indicates that
guidelines were reviewed by members of the administration, including the districts legal
counsel, and were in alignment with Board Policy FFH(LOCAL).

tea.texas.gov/Texas_SchooIs/SchooI_Boards/SchooI_8oardMember_Training/Framework_for_Schooi_Board
_Development/
3

While it is true that the guidelines were not submitted for a vote of the school board nor for
public debate, the guidelines appear to have been adopted pursuant to the Board Policy
BP(LOCAL). If the school board disagreed, the board would have the authority, in its oversig
ht
capacity, to direct the superintendent to make a change.
Moreover, the guidelines unquestionably touch on issues related to parental rights and
student
privacy. In school districts, many administrative issues relate to parental involvement and
students rights, including regulations on admissions, health matters, special education, and
more. Administrative procedures are a matter of public record, and parents who object may
file
grievances in accordance with school district policies. School districts do not, however, conduc
t
public hearings before establishing administrative guidelines.
The adoption of administrative guidelines is specifically delegated by law and policy to the
Superintendent. A school district board of trustees, acting as a body corporate, has the
exclusive power and duty to govern and oversee the management of the public schools of the
district. Powers and duties not delegated by law to the Texas Education Agency or State Board
of Education are reserved for local school boards. Tex. Educ. Code 11.151(b), (d).
Consequently, unless the guidelines violate state law which we understand to be the heart of
the question before you the establishment of administrative guidelines should be a matter
of
local control.

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

4 4./A

/zfoy Bakin
TASB Director of Legal Services
and General Counsel to the Legal Assistance Fund