By Kevin Lungwitz
For many years, Chapter 26 of the Texas Education Code has been devoted to parental rights. Parental rights also appear in the Texas Family Code, federal law, the U.S. and Texas Constitutions, and in myriad state and federal court decisions. Enter the nonprofit organization, The Texas Justice Foundation (TJF) and a form called “Notice and Declaration of Parental Rights” (NDPR). The 16-page NDPR form is a compendium of parental rights, enumerated and annotated, made to look like a formal legal document. It seeks to place you on formal notice that rights are being claimed by the parent. You may have received an NDPR from a parent.
What do you do?
Publicity is Surging, But Parental Rights Are Not Expanding
There has been increased publicity surrounding parental rights in recent years, probably due to our divided political climate and to the pandemic, or both. Although parental rights are in the news, parental rights have not significantly expanded in recent years. The NDPR creates the impression they have.1
Basic Parental Rights
The Texas Family Code grants the broadest parental authority. So long as these rights have not been modified or terminated by a court order, a parent has:
- The right to make decisions regarding the child’s education.2
- The duty to support the child, including providing the child with an education.3
Here are some important parental rights in the Texas Education Code:4
- To see their minor children’s educational records.5
- “… to request a change in the class or teacher to which the parent’s child has been assigned, if the reassignment or change would not affect the assignment or reassignment of another student.”6
- To review all teaching materials, textbooks, and other teaching aides used in the child’s classroom, electronic or otherwise, and to be given the login credentials to online materials; to review every test given to the child, including a state-assessment test, after it is given. A request for the child to bring home any textbook used in the classroom shall not be unreasonably denied, provided the child will bring back the textbook the next day if requested by the teacher.7
- To request that the district do an instructional material review.8
- The right to consent in writing before a school employee may make or authorize the making of a videotape of a child or record or authorize the recording of a child’s voice.9
- The right to temporarily remove a child from a class or activity because of a religious or moral conflict, if the parent delivers to the teacher a written statement authorizing the removal of the student. This cannot be done to avoid a test or to avoid a class for an entire semester.10
What About the NDPR?
The last right above was the subject of a recent Commissioner’s Decision at the TEA. A parent delivered an NDPR to the elementary principal at the beginning of the school year, opting the student out of a variety of subjects and/or material. In mid-March the teacher showed a PG movie to the class and the parent claimed a violation of the NDPR. It is unclear whether “Do not show my child a PG movie” was specifically listed on the NDPR, but it is undisputed the teacher violated campus practices in doing so. The parent pursued a grievance. In the grievance process, the district conceded a failure to follow campus policy and promised to counsel with the teacher, but the district denied implementing the specific disciplinary measure against the teacher requested by the parent.
The Commissioner can hear appeals that allege a violation of the Texas Education Code. The parent appealed to the Commissioner on that basis. The Commissioner wrote:
… [Texas Education Code section] 26.010 … entitles parents to remove a child from a school activity that conflicts with the parent’s religious or moral beliefs. It applies “if the parent presents or delivers to the teacher of the parent’s child a written statement authorizing the removal of the child from the class or other school activity. (emphasis in the decision)
Because the parent did not deliver the NDPR to the student’s teacher, the parent failed to comply with Section 26.010 and the Commissioner dismissed the appeal.
Some lingering questions: Had the parent given the teacher the NDPR, it is unclear whether showing a PG movie specifically violated the NDPR or Section 26.010, even though it violated campus policy. Let us assume, though, that the parent gave the teacher the NDPR, and that the PG movie did violate the NDPR and Section 26.010. The Commissioner cannot grant monetary damages for a violation of a school law, nor can the Commissioner order that a specific punishment be given to the teacher. The Commissioner can only declare that a violation occurred. If the district had conceded a violation during the grievance process, the parent’s appeal would be moot.
How to Handle An NDPR
Parental rights are real and must be respected, but the NDPR is overwhelming. It amounts to a parent casting a gigantic net from a shrimping trawler, when the parent only wants to catch a couple of minnows. It is hard to know specifically what the parent wants, other than to vaguely assert their full rights under the law. If you or your teachers receive an NDPR, it is advisable for you and the teacher(s) to have that discussion with the parent. What specific activity, lesson or material does the parent object to? What is the parent most concerned about? Teachers would be advised to regularly communicate lesson plans and teaching material to the parent, and to place the burden back on the parent to make a specific objection should the desire to do so arise.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
1Most of the improvements in parental rights in recent years clarify that the rights parents had with respect to books, parents also have with electronic media.
2Tex. Fam. Code Sec. 151.001(a)(10)
3Tex. Fam. Code Sec. 151.001(a)(3)
4See Chapter 26 of the Texas Education Code for more parental rights.
5See Policy FL (Legal) for exceptions to this general rule.
6Tex. Educ. Code Sec. 26.003 (a)(2)
7Tex. Educ. Code Sections 26.005; 26.006.
8Although parents have had the right to review teaching materials, petition the school board, and file complaints, beginning on Sep. 1, 2023, parents have a right to “a process” to request an “instructional material review” by the district under Tex. Educ. Code Sec. 31.0252. See Texas. Educ. Code Sec. 26.0061.
9An employee is not required to obtain consent if the videotape or voice recording is to be used only for: 1) The purposes of safety, including the maintenance of order and discipline in common areas of the school or on school buses; 2) A purpose related to a co-curricular or extracurricular activity; 3) A purpose related to regular classroom instruction; or 4) Media coverage of the school. Tex. Educ. Code Sec. 26.009 (a) (2); (b)
10Tex. Educ. Code Sec. 26.010
11Parent v. Richardson Indep. Sch. Dist., TEA Docket No. 002-R10-10-2022 (Comm’r Educ. Apr. 4, 2023)
TEPSA News, November/December 2023, Vol 80, No 6
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Note: Information from Legal Ease is believed to be correct upon publication but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
