Know Your Charter School’s Immunities and Exposures

1. Know Your Charter School’s Immunities and Exposures Texas Charter School Association Legal Summit 2011

2. Presented by Tommy Fuller Fuller Law Group Arlington, Texas

3. Immunity – The Royal Treatment • Sovereign Immunity • The King can do no wrong • Governmental Immunity • The government can do no wrong (or at least it can’t be sued or held liable)

4. Charter School Immunities Immunity from Suit? Protects against some contract claims This has yet to be decided Immunity from Liability • Protects against most tort claims • Clearly set forth in the Education Code • Identical to school districts • Employees too • s

5. Why do Charter Schools have Immunity in the first place? Status as public schools Operating as an arm of the government Providing free public education

6. Where does your immunity come from? The US Constitution? The Texas Constitution? Is it written in a statute?

7. Immunity – A Common Law Doctrine It is assumed It is acknowledged in court rulings and statutes There is no book in which it is written The Legislature has the authority to waive aspects of immunity The scope of immunity is shaped through legislative enactments and court decisions

8. So, where did this common law immunity come from? Sovereign immunity English common law The English Constitution The absolute power of kings

9. A Brief History of Common Law Immunity The divine bloodline God’s chosen The King can do no wrong

10. Thomas Becket Henry II

13. Charles I pled a defense of sovereign immunity in 1649 at his trial. Charles was charged with “high treason.” Charles claimed that no court had jurisdiction over a monarch. "Then for the law of this land, I am no less confident, that no learned lawyer will affirm that an impeachment can lie against the King, they all going in his name: and one of their maxims is, that the King can do no wrong."

14. Denied

15. The American Revolution Paradox:How did Sovereign Immunity make its way here?

16. The Sovereign Immunity Doctrine in the United States • Chisholm v. Georgia (U.S. Sup. Ct. 1793). • Citizen was allowed to sue a state over the state’s objection that it was “sovereign” and thus immune. • 11th Amendment to the U.S. Constitution (1794). • US Constitution amended to clarify that a suit may not be brought against a state in federal court by a citizen of another state.

17. The Sovereign Immunity Doctrine in the United States • Gibbons v. United States(U.S. Sup. Ct. 1868). • The federal government cannot be sued without the consent of Congress. • Hans v. Louisiana (1890). • Citizens of a state may not sue their own state in federal court.

18. Sovereign Immunity in Texas • Hosner v. DeYoung(Tex. Sup. Ct. 1847). • “No state may be sued in her own courts without her consent, and then only in the manner indicated by that consent.”

19. Charter School Immunities Charter schools are immune from liability to the same extent as school districts (TEC 12.1056). Includes employees, to the same extent as school district employees. What does this cover?

20. Immunity from Liability Not liable for any claim in a lawsuit or judgment UNLESS the Texas Legislature has consented to suit on that claim. What type of claims does the Legislature allow to be brought against school districts (and charter schools)?

21. Exceptions to Immunity from Liability • Claims arising out of the use of motor vehicles. • Actions against charter school employees who use excessive force in the discipline of students or negligence resulting in bodily injury to students. • Actions brought under 42 USC § 1983. • Deprivation of a constitutional right (such as due process) while acting under the guise of governmental authority. • Does not include claims for breach of contract.

22. Exceptions to Immunity from Liability • A charter school waives its immunity from liability under a contract every time that charter school enters into a contract. • Does that mean a charter school can be sued on any contract? • Immunity from suit to the same extent as school districts???

23. Immunity from Suit? • What is immunity from suit? • What immunity from suit do school districts possess? • Immunity from certain breach of contract claims (271.151 TLGC). • For a school district, immunity from suit is waived on a claim for breach of contract if: • The contract is in writing; • It is signed by an authorized representative of the district; and • The contract fully sets forth the terms of what is to be provided to the school district.

24. Do charter schools possessimmunity from suit? • This issue is up in the air. • LTTS Charter School, Inc. v. C2 Construction, Inc. • A charter school is a “governmental unit” that may take an “interlocutory appeal” • Still pending: Is a charter school immune from suit on an oral contract?

25. Charter School Immunityin a Nutshell Immune from liability on any claim to the same extent as school districts (exceptions: motor vehicles, excessive force, 1983 claims, and contracts). Immunity from suit on certain contracts has still not been decided.

26. Closing Thoughts • What do you do if you are sued? • Call your counsel and ask if this is the sort of claim that could be brought against a school district. • In contracting, be careful what you commit to doing. • Even if it is determined charter schools have immunity from suit, you will still can be sued and found liable for a breach of contract if the contract is (1) in writing, (2) signed by an authorized representative of the school, and (3) spells out the terms of what is to be done for the school, or what is expected from the school.

27. The End Tommy Fuller Fuller Law Group 2000 E. Lamar Blvd. Suite 600 Arlington, Texas 76006 (817) 201-0584 (817) 533-5209 (fax) tommy@tfullerlaw.com www.tfullerlaw.com www.charterlawtexas.com