Texas Supreme Court holds open enrollment charter schools not subject to Texas Whistleblower Act


Neighborhood centers INC. v. Doreatha Walker; from Harris County, 16-0897, — S.W.3d. –, (Tex. April 13, 2018)

The Texas Supreme Court held that an open enrollment charter school is not subject to the Texas Whistleblower Act.

Neighborhood Centers is an open enrollment charter school which hired Doreatha Walker as a third-grade teacher. She had been on the job only a few months when she complained mold in her classroom was making her and the children sick.  When the school did not respond the way she desired, she emailed her complaint to the Houston Health Department. She also wrote to the Texas Education Agency, asserting that the School had submitted falsified test scores to the Agency before Walker arrived. The next week, Neighborhood Centers terminated Walker. She filed a WBA claim against the non-profit which holds the TEA charter. The court of appeals ruled the WBA waived immunity for Walker’s claims. The Supreme Court accepted the petition for discretionary review.

The Texas Whistleblower Act (the “WBA”) prohibits a “local governmental entity”, including a public-school district, from retaliating against an employee for reporting a violation of law by the employer. The Texas Charter Schools Act (the “CSA”) authorizes the Commissioner of Education to grant eligible entities—usually private, tax-exempt nonprofits—charters to operate open enrollment schools as “part of the public school system of this state.”  Section 12.1056(a) of the CSA states “[i]n matters related to operation of an open-enrollment charter school, an open enrollment charter school or charter holder is immune from liability and suit to the same extent as a school district”. Walker argued the WBA waived the school’s immunity and since it was part of the public school system, the WBA applied. The Court went through a historical listing of the WBA.  It then went through the history of the CSA. Generally, open-enrollment charter schools are “subject to federal and state laws and rules governing public schools”, but they are subject to the Education Code and rules adopted under it “only to the extent the applicability to an open-enrollment charter school . . . is specifically provided.” This gives them greater flexibility in providing education.  In 2015 the Legislature amended the CSA and added Section 12.1058(c) which states “[n]otwithstanding Subsection (a) or (b), an open-enrollment charter school operated by a tax exempt entity . . . is not considered to be a political subdivision, local government, or local governmental entity unless the applicable statute specifically states that the statute applies to an open-enrollment charter school.”  As the WBA does not specifically apply to open enrollment charter schools, the fact a charter school is a governmental entity for other purposes is not relevant. The statutory sections listing charter schools as having the same immunity as a public school district only means they have immunity from applicable claims, but the WBA is not applicable specifically to charters.  The judgement was reversed and rendered.

If you would like to read this opinion click here. Justice Hecht delivered the opinion of the Court. Justice Justice Johnson delivered a concurring opinion.

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