Premier TX School Law Firm: Parents Can Opt Out (and Schools Can Excuse the Absence)

For readers of TPERN articles, you will recognize the name Walsh, Anderson.  Walsh, Anderson (now known as Walsh Gallego) is one of the largest (and arguably the most prestigious) education law firms in Texas.  They represent school districts across the state through multiple offices, speak at almost every school conference, and regularly provide guidance to school districts on difficult legal issues.  During the summer of 2014, after schools dealt with the first big wave of opt outs, Walsh, Anderson put together an “Opt Out Course for Schools.” which included a legal paper that contained various legal arguments against opting out.  Those same arguments now appear almost word for word in many letters districts send to intimidate parents.  They include the thoroughly discredited claim that the Attorney General has ruled that an assessment and a test are the same thing (it hasn’t).  When we posted the Walsh, Anderson handout that a school sent us, Walsh, Anderson made a copyright claim and demanded we take it down, even though schools post it all over the internet.  Notwithstanding the work Walsh, Anderson has done to arm schools with legal arguments to intimidate parents, we have always found them to be reasonable in working with parents to craft solutions that enable parents to make good educational decisions for their kids and allow the schools to meet their requirements under the state law.  And this is what good lawyers do: they help their clients find a way to do what they want to do.

Which raises the question: when a school decides to actively oppose Opt Out parents, is this something they do because the law requires them to, or is it a policy choice the school is making?  Because, quite often, schools will say the law requires them to take these stances.  That, of course, is nonsense.  We’ve always asserted that if a school district wishes to respect parental rights in the Opt Out process, a good lawyer can arm them with many tools to do exactly that while also protecting the school against allegations that it has not followed the TEA rules.  And knowing that the people at Walsh, Anderson are good and creative lawyers, our logical conclusion is that opposing parents is a local policy decision — not a result of the legal obligations of schools.

This conclusion was confirmed when we discovered an October 2014 “advice column” written by two Walsh, Anderson lawyers for the Texas Association of Secondary School Principals.  So that you understand this is coming from school lawyers and not TPERN, here is the intro biography to the column:

bios walsh

A principal wrote to the lawyers asking whether the school was required to report Opt Out absences as unexcused absences.  The Walsh, Anderson shareholder who responded not only gave the principal a route to excuse the absences, she also decided to explain opting out to other readers who may not have experienced it yet:

walsh excerpt

There you have it, in one simple sentence.  Putting everything else aside, the school lawyers know what TPERN and Opt Out parents state-wide have been saying for years: parents “technically” can opt out of STAAR.  But to take it a step further, schools can choose to excuse those absences!  Principals have wide discretion to decide what is an excused absence and what is not.  If a principal chooses to respect the rights of parents, he may mark STAAR opt out days as excused absences.

This column puts a school’s decision to fight opt out parents in a stark light.  Parents can opt out.  Schools can excuse the absences.  The decision to fight, intimidate and threaten does not come from the TEA.  It does not come from the school’s lawyers.  It is a local, policy decision.  A school’s hands are not tied.  They have a lot of discretion on how they treat parents.  It’s time to demand from your local school administration and trustees that schools respect parental decision-making.  In the meantime, if you get any blow-back from schools telling you that parents can’t opt out, just print out the column and give it to them with the note that according to Texas’s top school lawyers, you can.



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