Know Your Charter School’s
Immunities and Exposures
Texas Charter School Association Legal Summit 2011
Presented by Tommy Fuller
Fuller Law Group
Arlington, Texas
Immunity – The Royal Treatment
 Sovereign Immunity
 The King can do no wrong
 Governmental Immunity
 The government can do no wrong (or at least it can’t be
sued or held liable)
Charter School Immunities
Immunity from Liability
Immunity from Suit?
 Protects against most tort
claims
 Clearly set forth in the Education
Code
 Identical to school districts
 Employees too
 Protects against some contract
claims
 This has yet to be decided
 s
Why do Charter Schools
have Immunity in the
first place?
Status as public schools
Operating as an arm of the
government
Providing free public education
Where does your
immunity come from?
 The US Constitution?
 The Texas Constitution?
 Is it written in a statute?
Immunity – A Common Law Doctrine
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It is assumed
It is acknowledged in court rulings and statutes
There is no book in which it is written
The Legislature has the authority to waive aspects of
immunity
 The scope of immunity is shaped through legislative
enactments and court decisions
So, where did this common law
immunity come from?
 Sovereign immunity
 English common law
 The English Constitution
 The absolute power of kings
A Brief History of
Common Law Immunity
 The divine bloodline
 God’s chosen
 The King can do no
wrong
Thomas Becket
Henry II
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.
"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."
Denied
The American Revolution Paradox:
How did Sovereign Immunity make its
way here?
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.
 11th 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.
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.
Sovereign Immunity in Texas
 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.”
Charter School Immunities
 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?
Immunity from Liability
 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)?
Exceptions to Immunity from Liability
 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 Liability
 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???
Immunity from Suit?
 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.
Do charter schools possess
immunity from suit?
 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?
Charter School Immunity
in a Nutshell
 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.
Closing Thoughts
 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.
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.com
www.tfullerlaw.com
www.charterlawtexas.com