Can a Texas school district stop a parent from bringing an advocate to deal with their child's education?

Plain-English summary

A state representative asked a broad question: can a school district stop a parent from using an "advocate" to act on the parent's behalf about their child's education? The trouble was that the request did not define "advocate" or describe any particular situation, so the Attorney General said it could only answer in general terms.

Where Texas or federal law specifically provides for an advocate, the answer is clear: the district cannot prohibit one. The opinion found one Education Code provision that uses the word "advocate" in this context, section 29.306, which says a deaf or hard-of-hearing student must have an education in which the parents and the parents' advocates are involved in deciding the extent, content, and purpose of programs. Within the scope of that section, a district may not prohibit a parent from having an advocate, and a school board action taken against a statute is void.

The opinion also pointed to federal special-education law. The Individuals with Disabilities Education Act (IDEA) guarantees a free appropriate public education for children with disabilities, built around an individualized education program (IEP). The IEP team can include, at the parent's discretion, other individuals with knowledge or special expertise about the child. The Texas Education Agency's brief treated that person as an "advocate," and the opinion agreed a district may not stop a parent from inviting such a person to help develop the disabled child's IEP. Beyond those specific situations, though, the opinion found no general provision either allowing or banning advocates in all circumstances. It declined to opine on a district's authority across the board and noted that, if the Legislature wants to permit or prohibit advocates in other situations, a legislative remedy may be necessary.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Parents of deaf or hard-of-hearing students (what the opinion held): The opinion concluded that, within the scope of section 29.306, a school district may not prohibit a parent from having an advocate involved in determining the extent, content, and purpose of programs.

Parents of children with disabilities (what the opinion held): The opinion concluded that, under the IDEA, a district may not prohibit a parent from inviting a person with knowledge or special expertise about the child to participate in developing the child's individualized education program.

Parents asking about advocates generally (what the opinion did not decide): The opinion found no general Education Code provision either authorizing or prohibiting an advocate for all purposes, and declined to opine on a district's authority in all circumstances.

Representative Davis and the Legislature (what the opinion noted): The opinion noted that, to expressly permit or prohibit an advocate in particular circumstances beyond those it discussed, a legislative remedy may be necessary.

Common questions

Can a Texas school district refuse to let a parent bring an advocate?
It depends on the situation. The opinion concluded a district cannot bar an advocate where the law specifically provides for one, such as section 29.306 for deaf or hard-of-hearing students and the IDEA for disabled children's IEPs.

What does section 29.306 actually say?
The opinion quoted it as requiring that a deaf or hard-of-hearing student's education involve the parents and the parents' advocates in determining the extent, content, and purpose of programs.

Can a parent bring an advocate to an IEP meeting for a child with disabilities?
The opinion concluded yes. Under the IDEA, the IEP team may include, at the parent's discretion, other individuals with knowledge or special expertise about the child.

Is there a general right to an advocate for any education matter?
The opinion did not find one. It located no general Education Code provision allowing or prohibiting an advocate in all circumstances and said a legislative remedy might be needed to create one.

Background and statutory framework

The request did not define "advocate" or provide context, so the opinion advised only generally. The one Education Code provision using "advocate" in this context is section 29.306, which provides that a deaf or hard-of-hearing student must have an education in which the parents and the parents' advocates are involved in determining the extent, content, and purpose of programs. Tex. Educ. Code Ann. § 29.306 (West 2006). Within that section's scope, a district may not prohibit an advocate, because a school board act done in contravention of a statute is void. Benavides Indep. Sch. Dist. v. Guerra, 681 S.W.2d 246, 249 (Tex. App.-San Antonio 1984, writ ref'd n.r.e.). The opinion found no provision expressly authorizing a district to allow or prohibit an advocate for all purposes and would not answer the speculative, all-circumstances question. Tex. Att'y Gen. Op. No. JM-1267 (1990).

The Texas Education Agency's briefing pointed to federal special-education law. The IDEA guarantees a free appropriate public education for children with disabilities through an individualized education program, and a state's eligibility for federal funding depends on a compliant plan. 20 U.S.C.A. § 1400(d) (West 2010); id. § 1414(d); id. § 1412(a)(1)(A); 34 C.F.R. § 300.323(c) (2009); Tex. Educ. Code Ann. § 29.001 (West 2006); 19 Tex. Admin. Code § 89.1001 (2010). The IEP is designed by a team that may include, at the parent's discretion, other individuals with knowledge or special expertise about the child. 20 U.S.C.A. § 1414(d)(1)(B)(vi) (West 2010); 34 C.F.R. § 300.321(a)(6) (2009); 19 Tex. Admin. Code § 89.1050(c)(1)(F) (2010). Treating that person as an "advocate," the opinion advised that a district may not prohibit a parent from inviting such a person to participate in the disabled child's IEP. It also noted that section 29.005 and a related TEA rule concern disability education under the IDEA but do not use the term "advocate." Tex. Educ. Code Ann. § 29.005 (West 2006). Finally, the opinion concluded that to permit or prohibit an advocate in other particular circumstances, a legislative remedy may be necessary.

Citations

Statutes and rules:

• Tex. Educ. Code Ann. § 29.306 (West 2006)
• Tex. Educ. Code Ann. § 29.005 (West 2006)
• Tex. Educ. Code Ann. § 29.001 (West 2006)
• 19 Tex. Admin. Code § 89.1050(c)(1)(F) (2010)
• 19 Tex. Admin. Code § 89.1001 (2010)
• 20 U.S.C.A. § 1412(a)(1)(A) (West 2010)
• 20 U.S.C.A. § 1400(d) (West 2010)
• 20 U.S.C.A. § 1414(d)
• 20 U.S.C.A. § 1414(d)(1)(B)(vi) (West 2010)
• 34 C.F.R. § 300.323(c) (2009)
• 34 C.F.R. § 300.321(a)(6) (2009)

Cases and opinions:

• Benavides Indep. Sch. Dist. v. Guerra, 681 S.W.2d 246, 249 (Tex. App.-San Antonio 1984, writ ref'd n.r.e.)
• Tex. Att'y Gen. Op. No. JM-1267 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0813
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0813.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

October 27, 2010

The Honorable Yvonne Davis Opinion No. GA-0813
Chair, Committee on Urban Affairs
Texas House of Representatives Re: Whether parents may use the services of an
Post Office Box 2910 advocate in dealing with matters of their child's
Austin, Texas 78768-2910 education (RQ-0871-GA)

Dear Representative Davis:

You write to inquire generally "whether school districts can prohibit a parent from having an advocate to act on their behalf on matters pertaining to their child's education."[1] You appear to use the term "advocate" as a term with a particular meaning, yet there is no definition of the term in your letter. See id. Similarly, you do not provide any context for your question, nor do you ask us to opine about the scope of any particular statute.[2] See Request Letter at 1. Accordingly, we can advise you only generally.

We find only one provision in the Education Code that uses the noun "advocate" in the context of parental involvement in their child's education. See TEX. EDUC. CODE ANN. § 29.306 (West 2006). Without defining the term "advocate," section 29.306 of the Education Code provides that "a student who is deaf or hard of hearing must have an education in which the student's parents ... and advocates for the student's parents ... are involved in determining the extent, content, and purpose of programs." Id. This provision expressly provides that parents may have an "advocate" involved in the education of their deaf or hard-of-hearing child. See id. Accordingly, a school district may not prohibit a parent from having an advocate within the scope of section 29.306. Cf. Benavides Indep. Sch. Dist. v. Guerra, 681 S.W.2d 246, 249 (Tex. App.-San Antonio 1984, writ ref'd n.r.e.) (recognizing that a school board's act done in contravention of a statute is void).

None of the briefing we received raised a relevant state law provision, and we find no provision in the Education Code that expressly authorizes a school district either to allow or prohibit an advocate for all purposes. We thus cannot opine on the authority of a school district with respect to a parent's use of an advocate in all circumstances. Cf. Tex. Att'y Gen. Op. No. JM-1267 (1990) at 7-8 (declining to answer speculative question).

Briefing we received from the TEA advises that the IDEA's guarantee of a free appropriate public education for children with disabilities includes the development of an individualized education program ("IEP").[3] See also 20 U.S.C.A. §§ 1400(d) (West 2010) (providing purposes of IDEA), 1414(d) (providing for individualized education program); 34 C.F.R. § 300.323(c) (2009) (When IEPs must be in effect - Initial IEPs; provision of services); 19 TEX. ADMIN. CODE § 89.1001 (2010) (TEA, Scope and Applicability) (providing for special education services in accordance with applicable federal law). In general, an IEP is designed by a team of participants that includes, "at the discretion of the parent or the [school district], other individuals who have knowledge or special expertise regarding the child." 20 U.S.C.A. § 1414(d)(1)(B)(vi) (West 2010); 34 C.F.R. § 300.321(a)(6) (2009) (IEP Team); see also 19 TEX. ADMIN. CODE § 89.1050(c)(1)(F) (2010) (TEA, The Admission, Review, and Dismissal (ARD) Committee) (providing for an ARD Committee as the individualized education program). The TEA's brief suggests this individual with specialized knowledge or expertise is an "advocate" within the scope of your question. See TEA Brief at 1. Though you do not ask our opinion about this specific provision, we nevertheless advise that we believe a school district may not prohibit a parent from inviting a person with "knowledge or special expertise regarding the child" to participate in the development of their disabled child's IEP. See 20 U.S.C.A. § 1414(d)(1)(B)(vi) (West 2010); 34 C.F.R. § 300.321(a)(6) (2009); see also 19 TEX. ADMIN. CODE § 89.1050(c)(1)(F) (2010) (TEA, The Admission, Review, and Dismissal (ARD) Committee) (providing for an ARD Committee as the individualized education program); see also Benavides Indep. Sch. Dist., 681 S.W.2d at 249 (recognizing that a school board's act done in contravention of a statute is void).

You also ask whether a "legislative remedy [is] necessary for granting the use of an advocate in every circumstance that a parent may face with regard[] to their child's education[.]" Request Letter at 1. To the extent the Legislature seeks to expressly permit or prohibit the involvement of an "advocate" in particular circumstances, other than those discussed herein, a legislative remedy may be necessary.

SUMMARY

A school district may not prohibit a parent from having an advocate as authorized by section 29.306 of the Education Code. Similarly, a school district may not prohibit a parent from inviting an individual with specialized knowledge or expertise to participate in a disabled child's individual education program pursuant to the Individuals with Disabilities Education Act.

To the extent the Legislature seeks to expressly permit or prohibit the involvement of an "advocate" in particular circumstances, other than those discussed herein, a legislative remedy may be necessary.

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] Request Letter at 1 (available at http://www.texasattorneygeneral.gov).

[2] You offer a provision of the Education Code and a Texas Education Agency ("TEA") rule as examples of "proactive provisions" that encourage parental participation in their child's education. Request Letter at 1; see also TEX. EDUC. CODE ANN. § 29.005 (West 2006); 19 TEX. ADMIN. CODE § 89.1050(c)(1)(F) (2010) (TEA, The Admission, Review, and Dismissal (ARD) Committee). Both section 29.005 and the TEA rule pertain specifically to education for children with disabilities under the federal Individuals with Disabilities Education Improvement Act (IDEA). See TEX. EDUC. CODE ANN. § 29.001 (West 2006) (requiring development of a statewide plan for the delivery of services to children with disabilities that includes rules for a "special education program so that a free appropriate public education is available to all of those children between the ages of three and 21"); 19 TEX. ADMIN. CODE § 89.1001 (2010) (TEA, Scope and Applicability) (providing that "[s]pecial education services shall be provided to eligible students in accordance with all applicable federal law ... and the State Plan Under Part B of the Individuals with Disabilities Education Act"); see also 20 U.S.C.A. § 1412(a)(1)(A) (West 2010) (providing that a state is eligible for funding assistance for a fiscal year if the state submits a plan assuring that the state complies with IDEA provisions). Because neither provision uses the term "advocate," and because we do not understand you to ask about the IDEA, we do not address these provisions in depth.

[3] Brief from Mr. David Anderson, General Counsel, TEA, at 1-2 (Apr. 20, 2010) [hereinafter TEA Brief].