By Kevin Lungwitz
In February 2024, Texas Attorney General Ken Paxton sued two elementary principals in Denton ISD for allegedly violating state election laws.1 He also sued the Castleberry ISD superintendent, Aledo ISD, Denison ISD, Denton ISD, Frisco ISD, Huffman ISD, Hutto ISD (and possibly others since the time this article was written), all for allegedly violating state election laws.2 What are the issues involved in these cases and how can you avoid being the next target of the Texas A.G.?
Why Did the A.G. Sue These Employees and School Districts?
The lawsuits allege that school employees, or the school districts themselves through their social media posts, unlawfully used public funds to campaign for a candidate or a ballot measure. In state law this is called “electioneering,” and it is a jailable misdemeanor, although the A.G.’s suits are civil, not criminal.3 The allegations in these cases involve the contentious issue of school vouchers, where public school funds would be used to finance private schools, a very important issue to Governor Greg Abbott. When vouchers failed to pass in the regular session in 2023, and failed again in several subsequent special sessions, the governor promised to campaign against fellow Republicans in their primary elections who refused to support the voucher legislation.
It was during the March 2024 primary season when some school employees sent emails encouraging fellow staff members to vote to “support public schools,” showing a list of candidates who do or do not support public education funding. Hutto ISD posted on social media a statement saying, “For every 100 Hippos lost to [vouchers], Hutto ISD could face a $1.15 million decrease in [funding.]”4 The cases above involve some variation on this theme.
An Aside About School Bond Issues
Let’s put aside contentious state politics for a moment and talk about school bond elections, because this is usually the place where school employees and districts get into trouble. It is obvious that a school board wants the bond issue to pass, but the board and its employees must be careful in its messaging to the public and to each other. The board may use public funds to produce and distribute strictly factual information (e.g., flyers, mailers, billboards, etc.) about the bond package, but it may not use public funds to campaign for or against the bond. That is best done by a private political action committee using private funds.
Here is what the law says:
An officer or employee of a [school district] may not knowingly spend or authorize the spending of public funds [to support a candidate or ballot measure]. [This] does not apply to a communication that factually describes the purposes of a measure if the communication does not advocate passage or defeat of the measure.5
In a recent case, a superintendent told the principals to send an email to staff: 1. To remind them to vote; and 2. To encourage them to vote for the bond. It’s the second part of this directive that is problematic. When the principals followed the directive, they were subjected to an unnerving TEA disciplinary investigation. Though the principals were eventually absolved of wrongdoing, it is best to avoid this activity in the first place.
May a Public School Employee Send an Email Encouraging Others to Vote for a Candidate or Ballot Measure?
Of course, we are talking about using school district time and equipment, not whether you can do these things from home. Short answer: Maybe. Longer answer: It is problematic, so just don’t do it.
The Texas Ethics Commission, charged with enforcing election laws, apparently got tired of complaints involving emails. So, they passed a rule exempting “an individual … email or text message” from the scope of the law that prohibits using public funds to electioneer.6 As a practical matter, public employees send emails and text messages the way we used to chat in a breakroom, and breakroom talk is still legal. It may be legally defensible to send an email from your public computer to one or two friends saying, “Vote for this candidate or for the bond,” because there is no more calculable public funding that can be attributed to these emails than there would be for a quick phone call or breakroom chat with those same people. Note, however, it is illegal to send public emails to campaign if the cost of the emails surpasses normal tech and staff costs; meaning, don’t run a campaign operation from your public position. Also, beyond the election code prohibitions, there is another layer of educator ethics involved when a supervisor “directs” subordinates to vote for or against a candidate or ballot measure that you must avoid.
Is Asking People to “Vote for Public Education” Considered Electioneering?
Recall it is only illegal to use public funds to support a specific candidate or a specific ballot measure. “Vote For Public Education” is neither. But these days, a politician’s support for public education, or lack thereof, can be a defining trait. This makes the once generic and patriotic battle cry, “Support Public Education!” sound oddly issue or candidate specific. This, in turn, is likely to draw the attention of the Texas Attorney General as it did in the cases mentioned above. Was Hutto ISD in violation of the electioneering laws when it published facts about how vouchers would hurt its funding? In this author’s opinion, not likely, because vouchers were not on the ballot, only candidates; and Hutto ISD did not say to vote for or against a specific candidate. But since the candidates’ positions on vouchers more or less defined the recent primary season, Hutto’s message certainly rubbed some important people the wrong way.
Conclusion
Here is the take-away: Do all of your campaigning [“electioneering”] at home, on your own time, from your own computer, phone, yard sign, etc. You have a First Amendment right to be politically involved. You just can’t use any public resource or your public position to do so. Finally, you and your staff should not wear candidate or issue buttons to work, but you can wear “I voted” stickers, and you should encourage others to go vote.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
1Mohamed, Ikram, February 23, 2024, “Texas AG Ken Paxton sues Denton principals for electioneering on district emails,” Texas Tribune, [https://www.texastribune.org/2024/02/23/ken-paxton-sue-denton-isd-texas/]
2Attorney General Ken Paxton press release: “Attorney General Ken Paxton Sues Two More Texas School Districts for Illegal Electioneering,” February 29, 2024.
3Tex. Elec. Code Sec. 255.003(a); Sec. 251.001(16) & (19).
4Al-Shaikh, Sarah, March 5, 2024, “Texas AG Ken Paxton sues Hutto ISD for ‘illegal electioneering’” KXAN News, [https://www.kxan.com/news/local/williamson-county/texas-ag-ken-paxton-sues-hutto-isd-for-illegal-electioneering/]
5Tex. Elec. Code Sec. 255.003(a), paraphrased and brackets added for clarity.
61 Texas Admin. Code §20.1 (1) & (11)
TEPSA News, May/June 2024, Vol 81, No 3
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