Know Your Charter School’s Immunities and Exposures - PowerPoint Presentation

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Know Your Charter School’s Immunities and Exposures

Texas Charter School Association Legal Summit 2011Slide2

Presented by Tommy FullerFuller Law Group

Arlington, TexasSlide3

Sovereign ImmunityThe King can do no wrong

Governmental ImmunityThe government can do no wrong (or at least it can’t be sued or held liable)

Immunity – The Royal TreatmentSlide4

Charter School Immunities

Immunity from Liability

Protects against

most tort claims

Clearly set forth in the Education Code

Identical to school districts

Employees too

s

Immunity from Suit?

Protects against some contract claims

This has yet to be decidedSlide5

Status as public schools

Operating as an arm of the governmentProviding free public education

Why do Charter Schools have Immunity in the first place?Slide6

The US Constitution?

The Texas Constitution?Is it written in a statute?

Where does your

immunity come from?Slide7

It is assumedIt is acknowledged in court rulings and statutesThere is no book in which it is written

The Legislature has the authority to waive aspects of immunityThe scope of immunity is shaped through legislative enactments and court decisions

Immunity – A Common Law DoctrineSlide8

Sovereign immunity

English common lawThe English ConstitutionThe absolute power of kings

So, where did this common law immunity come from?Slide9

The divine bloodline

God’s chosenThe King can do no wrong

A Brief History of

Common Law ImmunitySlide10

Henry II

Thomas BecketSlide11
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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.

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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."Slide14

DeniedSlide15

The American Revolution Paradox:

How did Sovereign Immunity make its way here?Slide16

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.

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th

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.Slide17

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.Slide18

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.”

Sovereign Immunity in TexasSlide19

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?

Charter School ImmunitiesSlide20

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)?

Immunity from LiabilitySlide21

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.

Exceptions to Immunity from LiabilitySlide22

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???

Exceptions to Immunity from LiabilitySlide23

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.

Immunity from Suit?Slide24

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?

Do charter schools possess

immunity from suit?Slide25

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.

Charter School Immunity

in a NutshellSlide26

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.

Closing ThoughtsSlide27

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.comwww.tfullerlaw.comwww.charterlawtexas.com