Education Code prohibits schools from considering a vendor’s relationship with a charter school, Paxton says

By Gabriel Neves | Nov 29, 2018

AUSTIN – A court of law would conclude that the section 44.043 of the Education Code prohibits schools from taking into account a vendor's relationship with an organization, Attorney General Ken Paxton said.

Paxton issued an opinion on the subject on Nov. 21 upon request of the chair of the Senate Committee on Business and Commerce Kelly Hancock due to concerns that some school districts in the state might be requiring vendors to agree not to work with charter schools as a condition to contract with those districts.

Using the meaning of the term "consider," which is defined, per the opinion, as "to take (something) into account when making an assessment or judgment," Paxton stated that "under subsection 44.043(b)(l), a school district may not take into account a vendor's relationship with any organization while engaged in contracting and procurement as provided by subsection 44.043(a) [of the Education Code]."

Also stated in the opinion, "a school district may not use its bid specifications or any subsequent contract or agreement to refuse a person work with the school district or to lessen a person's ability to work with the school district because of the person's membership or other relationship status with respect to any organization."

Paxton defined organization as "'an organized body of people with a particular purpose, esp. a business, society, association, etc.," and explained that "an entity operating as a charter school is an organized body of people," adding that "each charter school serves the common purposes" set up by the Education Code.

Paxton concluded the opinion by saying that "section 44.043 applies to all aspects of the procurement process from the beginning of the process to any subsequent contracts or agreements," and that the section "applies to procurement activities authorized by any statute authorizing a school district's procurement."

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