The Houston [1st] Court of Appeals has reversed a trial court’s denial of an open-enrollment charter school’s plea to the jurisdiction in a case alleging that a school counselor sexually abused several students.
While Kipp Texas, Inc. d/b/a Kipp Texas Public Schools v. John & Jane Doe, et al. (No. 01-21-00368) does not break any new ground with respect to a charter school’s immunity (SCOTX has already decided that charter schools have the same immunity as school districts), the court of appeals’ somewhat abbreviated discussion of the interplay between the Article 1, Section 13, Texas Constitution, the open courts provision, and the application of governmental immunity where a school employee is sued for sexual abuse. The court’s analysis turns on SCOTX’s decision in El Paso Educ. Initiative v. Amex Props., 602 S.W.3d 521 (Tex. 2020), which, in addition to holding that a charter school has governmental immunity, explained its holding as an exercise of “the judiciary’s responsibility to define [the] boundaries” of the common-law doctrines of sovereign and governmental immunity. Although the Legislature has statutorily granted immunity to charter schools, the Court “did not defer to this legislative enactment in El Paso,” but decided the case “on an independent basis.” As the Open Courts provision “prohibits the legislature from unreasonably abrogating well-established common-law claims” (citing Franka v. Velasquez, 332 S.W.3d 367, 385 (Tex. 2011)), nothing prevents SCOTX from abrogating common-law claims. Consequently, the Open Courts provision does not apply.
Additionally, the court ruled that even if Open Courts did apply, SCOTX has already said that conferring immunity on charter schools to the same extent as public schools “respects the legislature’s decision to fulfill its constitutional obligation to provide free, public education through charter schools, its allocation of tax dollars to meet that objective, and its directive that charter schools and charter-holders have immunity from suit and liability . . .” (quoting El Paso). Thus the statute granting immunity to charter schools would not “unreasonably abrogate” traditional common-law claims.
Open Courts challenges are few and far between and rarely, if ever, successful. Perhaps the two best examples are workers’ compensation reform and damages caps, both of which have survived such challenges. We wonder about the extent to which Art. 1, §13 still lives on in our jurisprudence, particularly in view of how much the Legislature has modified tort law in the last 35 years. Perhaps if the Legislature statutorily abrogated the common law negligence altogether, it might, but only if no other compensatory scheme replaced it. In any event, the court of appeals’ opinion in this case is interesting in its reliance on the exclusivity of SCOTX’s power to make—or unmake—common law.
