As many schools and school districts prepared for Spring Break, correspondence was sent out to students’ parents encouraging them to take proper precautions over the school holiday, particularly with regard to infectious disease prevention. With the South Plains measles outbreak continuing to grab headlines and the attention of many concerned parents, schools were also laying the groundwork for excluding certain students. TFVC’s Political Director Michelle Evans recently assisted a parent in the Northeast Texas area when a school nurse sent a letter detailing her plan to force exempted students from school if there was even one suspected case of measles on campus. Her experience helps inform our recommended approach here.
But, first, let’s go over some important definitions and distinctions so that you’re able to respond to potential threats of exclusion with confidence and knowledge.
A Texas statute is created and/or amended by the Texas Legislature. Law and statute are often used interchangeably. This article will focus specifically on the laws found in Texas Education Code (TEC) Chapter 38 of Texas statute.
On the other hand, a rule outlines how a specific state agency implements or executes a statute. These rules are found in the Texas Administrative Code (TAC). This article focuses particularly on TAC Title 25, Chapter 97, which consists of rules created by the Department of State Health Services (DSHS).
When a statute is created or amended, often the legislation which creates or amends the statute will include language granting rulemaking authority to a specific state agency. It is important to note that TEC Chapter 38 does not grant rulemaking authority to any agency.
Now, here is what you need to know: Texas statute gives authority to one entity, the Department of State Health Services, to determine when and whether students may be excluded. However, the Department of State Health Services has adopted rules (outlined in Texas Administrative Code) that abdicate this authority, empowering school administrators with broad control not afforded to them in law. TAC rules even go so far as to say that students shall be excluded, no longer allowing for discretion on the part of DSHS.
Let’s dive in.
Texas Education vs. Administrative Codes: Who Can Exclude Students?
In Texas, a critical conflict between the Texas Education Code (TEC) Chapter 38 and the Texas Administrative Code (TAC) Title 25, Chapter 97, muddies the waters on who can exclude students from school under certain conditions. TEC Chapter 38 clearly assigns this authority to the Executive Commissioner of the Department of State Health Services (DSHS), but TAC Chapter 97 provides procedures that schools misuse to take matters into their own hands. Parents facing such exclusions should turn to TEC to fight back.
TEC Chapter 38: DSHS Holds the Reins
TEC Section 38.031 states that a student with a communicable disease “may not attend school” if they have a condition identified by the Executive Commissioner of DSHS. This implies DSHS, not schools, determines exclusion based on health risks. Similarly, TEC Section 38.001(f) allows exclusion of exempted students during declared epidemics or emergencies, but the declaration must come from DSHS. The law positions DSHS as the gatekeeper, ensuring exclusions are rooted in limited circumstances, not school discretion.
TAC Chapter 97: Schools Overstepping?
Despite this, TAC Rule 97.7 lists communicable diseases and conditions for exclusion, suggesting schools can act independently by following these guidelines. Schools might interpret this as permission to exclude students directly, citing diseases like measles or tuberculosis from TAC’s list. This procedural framework conflicts with TEC’s intent, as it bypasses DSHS’s exclusive authority and hands schools a tool they’re not legally entitled to wield.
The Conflict in Action
Imagine a school excludes a student for a suspected communicable disease, pointing to TAC Rule 97.7. Under TEC Chapter 38, this move is questionable—only DSHS should make that call. Schools citing TAC overstep their bounds, creating a legal gray area that disrupts parental rights and student access to education.
Parents’ Defense: Cite TEC
Parents can push back by invoking TEC Chapter 38. If a school excludes a child using TAC, argue that Section 38.001(f) reserves this power for DSHS. Demand evidence of a DSHS directive specific to the case—without it, the exclusion lacks legal grounding. This strategy flips the script, using the state’s own education law to challenge unauthorized school actions.
Conclusion
TEC Chapter 38 is clear: DSHS, not schools, determines whether students may be excluded; it explicitly requires a declaration of an epidemic or emergency by its Executive Commissioner. TAC Chapter 97’s procedures dilute this authority, letting schools act where they legally have no authority to act. Parents armed with TEC can hold schools accountable, ensuring exclusions follow the law, not administrative overreach.If you are instructed to keep your child at home due to their exemption status, make sure you have this information readily available. Stand firm and ask your school administrator, nurse, or superintendent to provide you with the statute that gives them legal authority to exclude your child. Additionally, ask them for the proof of emergency or epidemic declaration by the DSHS Executive Commissioner. And if you’re ever in need of assistance, don’t hesitate to reach out to TFVC!
