I have received several calls today regarding the TEA Correspondence from Representative Charlie Howard and Representative Warren Chisum. It does not appear that TEA sponsored or endorsed this correspondence. The letter leads you to believe that by adopting the “model policy” you can avoid legal expenses and liability. This statement is not completely accurate. As I told you in prior correspondence, complying with state law is not a defense to liability for violating an individual’s federally protected rights. If your policy violates the United States Constitution, your district may be liable for damages and attorney’s fees.
If your district is sued regarding the constitutionality of the Religious Viewpoints Anti-Discrimination Act, then the Attorney General must be served with a copy of the proceeding and is entitled to be heard, but not required to intervene into the lawsuit. In fact, there have been cases where the Attorney General has not intervened when there have been challenges to the constitutionality of state statutes. The Attorney General cannot defend your district. If the State of Texas and your district are sued, the Attorney General will defend the State of Texas, not your district.
In order to fully protect your rights, you will need to hire your own attorney. The Attorney General is not your attorney and may not defend you in the same manner as your own legal counsel.
I have advised many of you regarding various options. This letter is not causing me to change my opinions. If you have any questions or need any additional information, please feel free to give our firm a call.