Higher Education Law & Litigation (Texas)

ABOUT THE FACULTY RIGHTS COALITION

We advocate on behalf of full-time & part-time professors, lecturers, and teachers and are committed to the goal of fair and equitable
treatment of all fa culty in Texas . We do so by various means, including research, information sharing, education, litigation, and
submission of amicus brief s in support of public employees embroiled in employment disputes.

We track Texas higher education and school law cases in the Te xas Courts of Appeals, in the Texas Supreme Court, and in the U.S. Court
of Appeals for the Fifth Circuit. This includes first amendment cases and civil rights litigation involving other constitutional rights, such as
due process and equal protection; cases involving claims of wrongful termination, non-renewal, tenure-denial, breach of contract,
discrimination, retaliation, and whistle blower claims.

We have added pages that track recent decisions on a wide range of legal issues handed down by the two appellate courts sitting in
Houston, the First Court of Appeals and Fourteenth Court of Appeals. We also monitor and provide links to Texas Supreme Court
opinions, and case events relating to new and pending appeals in the state's highest court for civil cases.

FACULTY RIGHTS IN A NUTSHELL

Employment rights. Narrowly defined, the term “faculty rights” refers to rights faculty members have as a result of their employment at
colleges and universities. It encompasses employment rights generally, and rights and protections inherent in the role of “professing,”
most notably academic freedom. In addition to individual rights, rights arising from the employment relationship also include group-based
rights, such as collective bargaining (severely restricted in the public sector in Texas) and unionization under the federal National Labor
Relations Act (at private institutions of higher learning).

Scope of faculty rights. Some rights cherished by academics, such as freedom of speech and due process, are universal even though
private institutions are not bound by the commands of the constitution, which only applies to the government. Others, such as labor union
organizing and collective bargaining vary considerably from state to state, and reflect the political leanings of their policymakers in the state
legislature and in the courts. Within the legal framework provided by state law, there are of course many institution-specific variations in
employment policies and rules.

Rights of teachers as citizens. Professors and teachers, are also members of their communities and have rights as citizens of those
communities, as consumers, as home owners, and simply as members of the public. In recognition that we all are members of our
communities in different capacities, we have added pages on areas of law other than merely higher education, school law, and
employment law.

Source of rights. The rights of professors and other instructional staff arise from the federal constitution, the state constitution, federal and
state statutes, institutional policies, common law and individual contracts.

Constitutional rights. Congress has provided a remedy for violations of federal constitutional rights through Section 1983 of the Civil
Rights Act. Although the Texas Bill of Rights protects the same rights as its federal counterpart, the Texas Supreme Court has held that
money damages are not available to compensate victims of state constitutional violations. Only equitable relief, such as an injunction, or
reinstatement of a fired employee, is available. Nor can state constitutional rights be vindicated in federal court.

Statutory rights. The most important labor and employment legislation is found in the Texas Labor Code. Texas has its own civil rights act
prohibiting discrimination in employment. Formally a part of Labor Code, it is also known as Texas Commission on Human Rights Act
and is patterned on Title VII of the federal Civil Rights Act. The state anti-discrimination law is now administered by the Civil Rights Division
of the Texas Workforce Commission. It has a work-sharing agreement with the EEOC, which enforces federal civil rights laws.

Other codes relevant to faculty at public universities and colleges are th e Texas Ed ucation Code, the Texas Whistleblower Act, and the
Texas P ublic Information Act. The Whistle Blower Act only protects public employees. Standing to file requests under the Public
Information Act (Open Records Act), by contrast, is not restricted. Any member of the public can invoke it to gain access to documents held
by government agencies.

Sovereign immunity. To be meaningful, rights must be enforceable in the courts when threatened, compromised, or denied.
Unfortunately, in Texas, many rights that are otherwise taken for granted cannot be enforced because the state judiciary’s adherence to the
doctrine of “sovereign immunity,” the modern-day equivalent of the absolutist maxim that “The King can do no wrong” because he is the
Sovereign and thus above the law. This judicially established doctrine protects agencies of the State, including public universities, from
suits regardless of merit. It requires trial courts to dismiss such suits for lack of jurisdiction unless the immunity is waived by the Texas
Legislature. Freedman v. University of Houston, 110 S.W.3d 504 (Tex.App.-Houston [1st Dist] 2003, no pet.).

The doctrine runs counter to the core principle that in a democracy sovereignty is vested in the people, rather than the rulers. By granting
immunity to government and government officials it also contravenes the principle that power is limited and constrained by the
constitution, and that individuals must be afforded remedies when their rights are violated.

Sovereign immunity jurisprudence has been used by the State’s Republican-controlled judiciary to curtail the rights of plaintiffs and
prevent damage awards for harm caused by government agencies. For state university employees, sovereign immunity means that their
institution cannot be sued for breach of an employment contract. The sovereign immunity do ctrine not only bars such suits by professors,
but by patients (in the case of medical schools), by vendors and contractors, and by students as well. See Univ . of Houston Central
Campus v. Steven Simons. For the general public, sovereign immunity means that a government agency can be held liable for damages
caused by negligence only under the very limited circumstances spelled out in the Texas Tort Claims Act.

Numerous cases challenging the sovereign immunity doctrine have been appealed to the Supreme Court of Texas. Some argue that the
state entity waived its immunity by its conduct (waiver-by-conduct theory). Others urge the highest court in the state to hold that statutes (or
charters of self-rule cities such as Houston) that provide that the governmental entity may "sue and be sued" waive the immunity the entity
would otherwise possess. The Texas Supreme Court, which is the court of last resort on questions of state law in civil cases, resolved
some of the sovereign immunity issues in the slew of opinions handed down before its 2006 summer recess.

June 30, 2006 - The Texas Supreme Court issues decisions in more than a dozen sovereign immunity cases; holds that statutory
language giving authority to "sue and be sued" does not mean that governmental entities may be sued; Sue-and-be-sued language
permits the state agency, city or special district to sue, but does not waive the entity's immunity to suit by others.

PURPOSE

This site is meant to serve primarily as an information resource for higher education professionals, faculty members and other teaching
and non-teaching staff, and as a networking and e-organizing tool for adjunct faculty specifically. Part-time and temporary faculty members
have a particularly acute need for networking and collective action to improve their working conditions and pay. Adjuncts do not have many
of the rights and privileges taken for granted by their tenured and tenure-track colleagues, and are rarely granted membership status and
voting rights in the Faculty Senate, not to mention university committees and other vehicles of shared governance. The normal channels
that allow faculty members to exert some influence within academic institutions are thus foreclosed even though adjuncts are vital to the
accomplishment of their institutions' teaching mission. At many colleges and universities part-timers and temporary instructors now
account for half, or even more, of student semester credit hours. Yet they have little input in the shared decision-making process. Adjuncts
are largely invisible because they typically have no offices on campus and hold positions at several schools at the same time.

Also visit the following blogs by or about adjuncts: Humboldt Adjunct | Adjunct Lifeline: Resources and Pedagogy | Adjunct Professoring |
Burnt Out Adjunct | Profession Narratives by Adjunct Whore | Teach Online by Virtual Professor | Your Related Blog Here

Should adult faculty members unionize to improve their leverage in dealing with university administrators? The question is largely
moot in Texas. State law prohibits collective bargaining at state universities and other state entities. We brought a constitutional challenge
against this prohibition, which is also reflected in university policies. The claim was rejected by the U.S. District Court for the Southern
District of Texas. See Faculty Rights Coalition v s . Hossein Shahrokhi . Judge Lee Rosenthal reasoned that we could unilaterally present
grievances (guaranteed by the first amendment) without engaging in collective bargaining (prohibited by the statute).

Message can be emailed to: admin@faculty-rights-coalition.com

Find 2008 Decisions of the Texas Supreme Court and the Houston Courts of Appeals at Texas Opinions | Ho uston O pinions

Interesting Recent Education Law Related Decisions from Texas Courts of Appeals

Aug 13, 2008 - San Antonio Court of Appeals affirms dismissal of suit for intentional infliction of emotional
distress (IIED) brought by school administrator against students for setting up spoof MySpace web page
purporting to be hers and posting obnoxious content on it. Draker v. Schreiber, No. 04-07-00692-CV (Tex.
App.- San Antonio, 2008) (Internet defamation, IIED claim not viable separately when claim based on libel)
One panel member, Justice Stone, grudgingly concurs, but uses the occasion to criticize the Texas
Supreme Court for making it well-neigh impossible to ever win an IIED case, leaving targets of web-based
character assassination - here teachers and administrators - without a legal remedy.

July 3, 2008 - Houston Court of Appeals reverses jury award in professor's whistleblower suit against UH
and remands for a new trial The University of Houston v. Stephen Barth No. 01-06-00490-CV (Tex.App.-
Houston [1st Dist.] July 3, 2008)(Majority opinion by Justice Higley; Dissent by Justice Alcala)
Also see prior appeal: The Univ . of Houston v s . Stephen Barth | Other Whistleblower cases |

Recent Texas Labor and Employment Cases of Interest:

City of Waco, Texas v. Lopez, No. 06-0089 (Tex. July 11, 2008)(Opinion by Justice Wainwright)
(Whistleblower Act vs.TCHRA, anti-discrimination statute as exclusive remedy for retaliation claim)
Stephens v. City of Houston (Tex.App.- Houston [1st Dist.] June 12, 2008)(Keyes) (law suits against the City of Houston, UDJA claims
stemming from termination of city employment moot, no standing, DWOJ)
City of Santa Fe, Texas v. Boudreaux (Tex.App.- Houston [14th Dist.] May 29, 2008)(Guzman) (labor and employment law, public
employment, provision of collective bargaining voided as unconstitutional private delegation of legislative power)
Coleman v. Revak (Tex.App.- Houston [1st Dist.] June 19, 2008) (Hanks) (employment at will)
O’Neil v. Ector ISD, No. 07-0084 (Tex. Mar. 28, 2008)(per curiam) (teacher contract dispute, exhaustion of
administrative remedies, limitations)
Mission Consolidated ISD v. Garcia, No. 05-0734 (Tex. Mar. 28, 2008)(O’Neill)(public employment, wrongful termination claim,
TTCA, tort claims, TCHRA claim, immunity waiver)
Pride International, Inc. v. Bragg (Tex.App.- Houston [1st Dist.] Apr. 3, 2008)(Bland) (employment law, severance pay dispute)
Duran v. Fort Worth I.S.D., No. 02-06-00024-CV (Tex.App.- Fort Worth, Feb. 21, 2008, pet. denied)
(Whistleblower Act claim, no adverse personnel action)
Phelan v. Texas Tech Univ., No. 07-07-0171-CV (Tex. App. - Amarillo, Jan. 23, 2008, pet. denied) (WBA, nonrenewal of untenured faculty
member, due process, at-will employment, no protected property interest, liberty interest claim regarding harm to reputation)
Kalyanaram v. UT (Tex.App.- Dallas 2007)(dismissal of claim for breach of settlement agreement reversed)

Texas Supreme Court holds that state universities are immune from suit for breach of settlement agreement brought by employees, and
that university administrators are likewise immune in their official capacity. Texas A&M Univ. v s . Koseoglu (Tex. 2007); High Court reverses
intermediate court of appeal's decision to give plaintiff an opportunity to amend his pleadings to try to overcome the immunity bar. Texas
A&M Univ. Sys. v. Dr. Sefa Koseoglu, 167 S.W.3d 374 (Tex.App.--Waco 2005, pet. granted May 26, 2006 , reversed in part)

August 31, 2007 - Texas Supreme Court throws out regulation of seminaries by Texas Education Code and Texas Higher Education
Coordinating Board as overly intrusive under the first amendment guarantee against state interference with religion. Regulation served to
protect the public and prevent mushrooming of diploma mills in Texas. HEB Ministries, Inc. v . Texas Higher Education Coordinating Board,
No. 03-0995 (Tex. Aug. 31, 2007)(Opinion by Justice Hecht)

August 30, 2007 - Houston court of appeals rules against former TSU President Priscilla Slade in wrongful termination suit against
regents. Rejects breach of contract claim on sovereign immunity grounds and declines to recognized waiver of immunity by inequitable
conduct. Priscilla D. Slade vs. Texas Southern University Board of Regents, No. 01-06-00990-CV (Tex.App.- Houston [1st Dist.] , Aug. 30,
2007)(Opinion by Justice Sam Nuchia)(breach of contract claim against state university barred by sovereign immunity, waiver-by-conduct
theory not applicable)(Before Justices Nuchia, Keyes and Higley)

June 25, 2007 - U.S. Supreme Court hands down decision in student first amendment case. Morse v. Frederick (U.S. Sup. Ct. 2007)

April 24, 2007 - Fifth Circuit, sitting en banc, declares appeal in Harris County b ible d isplay case moot, remands for determination of
attorney's fees. Harris County removed bible monument from Old Civil Courthouse plaza in course of construction work. Building will be
the home of the First and Fourteenth Court of Appeals when remodeling work is completed.

April 24, 2007 - Fifth Circuit decides numerous appeals stemming from suit over Texas A&M bonfire collapse. Plaintiffs lose.
Breen v. Texas A&M University (5th Cir. 2007)

April 12, 2007 - Houston Court of Appeals says UH is immune from personal injury suit by student who fell at graduation ceremony at
Hofheinz Pavilion. University of Houston v. Yvonne Michelle De Luna (Tex.App. - Houston [1st. Dist.] Apr. 12 2007)(Opinion by Justice Taft)

New Development in Texas Sovereign Immunity Jurisprudence
State Supreme Court Sides With City in State-vs.-City Suit, and Sets New Precedent

March 2, 2007 - Narrow majority of the Texas Supreme Court holds that the City of Galveston is immune to suit by the State, in addition to
being immune to suit by its residents and contractors, unless immunity is expressly waived and consent for suit is granted by the
Legislature. City of Galveston v s . State of Texas, No. 04-0890 (Tex. Mar. 2, 2007)(Opinion by Justice Scott A. Brister)
Also see other 2007 Texas Supreme Court Opinions | 2006 Supreme Court Opinions | 2006 Texas Supreme Court Case Statistics

First Court of Appeals Recognizes Theory That Government Entity Can Waive Its Immunity By Its Conduct

Jan. 11, 2007 - First Court's Justice Evelyn Keyes joins majority in TSU breach-of-contract case and calls on Supreme Court to recognize
waiver-by-conduct exception to sovereign immunity in breach of contract cases against state entities; issues new opinion.
TSU v. State Street Bank and Trust Company (Tex.App.--Houston [1st Dist.] Jan. 11, 2007)(substituted separate opinion by Keyes)
Majority issues new opinion, again authored by Justice George C. Hanks. Texas Southern University v. State Street Bank and Trust Co. II
(Tex.App.-Houston [1st Dist.] Jan. 11, 2007)(substitute opinion by Justice Hanks). Texas Supreme Court passed up numerous
opportunities to establish a waiver-by-conduct exception in previous cases in which the theory was raised.

Dec. 15, 2006 - Fifth Circuit Decides School Prayer Case Doe vs. Tangipahoa Parish School Board., No. 05-30294 (5th Cir. 2006).

More university and higher eduction law news items can be found on the FRC news archive page (law suits, evolving case law, ethics
issues)