New to Texas? What grade shall we place you in?

I hope you can join us this Friday for Zooming with the Dawg at 10:00.  We will have a lot to talk about, including Supreme Court decisions that will rock your world. This will be the final Zooming with the Dawg for the summer, so I hope to see your face on a tiny rectangle on my laptop.  Subscribers to the Daily Dawg can attend the Zoom at no cost. If you are not yet signed up for these, send an email to

Now, for today’s interesting court case: Two siblings and their mother immigrated to Lubbock from Egypt in February, 2017.  That’s not Egypt, Texas.  Cleopatra Egypt.  The mother enrolled her children in an elementary school in Lubbock ISD on February 9, 2017.  They started out in the third grade, but within a couple of weeks the teachers recommended that the students move back to second grade.  The teachers expressed concern over the students’ reading ability and their grasp of third grade curriculum.  The principal moved the students to second grade for the remaining months of that school year.  Being in the second grade, rather than the third, the students did not take the STAAR.  The next year both students successfully completed third grade. That’s when the mother sued the district over the involuntary transfer back to the second grade.

The 5th Circuit ruled in favor of LISD, holding that the parent failed to prove any violation of federal law.  The court’s analysis of the claim under the Equal Educational Opportunities Act (EEOA) is noteworthy.  We do not see a lot of lawsuits citing the EEOA, a federal law that requires schools to take “appropriate action to enable students to overcome language barriers that impede equal participation.”  

The court held that the mother had “forfeited” this claim by failing to address a provision in the Texas Administrative Code about out-of-country transfers.  Key Quote:

What [the mother] implies is that once [the students] were placed in the third grade, they were entitled to remain in it.  But as new out-of-country transfer students [these students] had to be appropriately placed in a grade in accordance with 19 T.A.C. 74.26, which states:

A school district must ensure that the records or transcripts of an out-of-state or out-of-country transfer student (including foreign exchange students) or a transfer student from a Texas nonpublic school are evaluated and that the student is placed in appropriate classes promptly. The district may use a variety of methods to verify the content of courses for which a transfer student has earned credit. 

Notice: that TAC provision applies to students coming from Egypt, but also from Wisconsin, or from a private school in Texas.  Note also that it requires prompt attention and calls for the use of a “variety of methods.”  Perhaps if these students had started third grade in September and were moved to second grade in February the parent would have had a stronger case. But the school acted swiftly here, and based its decision on the judgment of two teachers who had been working with the student. 

The case of Eltalawy v. Lubbock ISD was decided by the 5th Circuit on June 8, 2020.  It will not be published in the “official” legal reports, but we found it at 2020 WL 3053961.


Tomorrow: the debate over “qualified immunity.”