“This is a victory for all military spouses,” said Hannah Magee Portée, of Del Rio, Texas. “I hope it makes other spouses’ lives easier, and I hope they don’t have to go through what I did just to be able to work.”
Judge Robert Pitman ruled that Texas Commissioner of Education Mike Morath, Texas Education Agency and the State Board for Educator Certification violated the Servicemembers Civil Relief Act, when they refused to accept her school counseling licenses from Ohio and Missouri earlier this year when she moved to Texas. She and her husband, Air Force Capt. David Portée, moved on military orders to Laughlin Air Force Base.
Texas Education Agency officials hadn’t responded by press time to Military Times’ request for comment.
This sets a legal precedent that will benefit all military spouses, said Brandon Grable, Portée’s attorney. “This is not just a win for Hannah, but a win for military and their spouses across the country. Other courts can rely on it elsewhere in the event spouses are in the same situation.”
Until now, no court had interpreted the SCRA’s license portability provisions. The new provisions of the SCRA were signed into law on Jan. 5, requiring states to provide reciprocity in accepting valid occupational licenses from previous jurisdictions. The law also applies to service members.
The law broke new ground in the effort to help military spouses who face onerous and often expensive processes each time they move to get certified to continue their chosen career in a new location. Defense officials have calculated there are more than 132,000 active-duty spouses in occupations like nursing and realty that require licensing, representing about 39% of military spouses in the workforce.
The ruling in Portée’s case, issued Monday in U.S. District Court in Austin, found that the state violated federal law by requiring Portée to adhere to Texas requirements. Texas was requiring her to verify continuous use of her school counseling licenses for a two-year period before she moved to Texas with her husband, in order to qualify for a Texas educator certification based on her out-of-state licenses.
The ruling permanently stops Texas education officials from enforcing the Texas requirements in Portée’s case. The judge had issued a temporary injunction in July in her favor. That enabled Portée to get a temporary license, allowing her to work as a substitute counselor.
But the ruling comes too late for her for the current school year, she said. “I wasn’t able to secure a full-time position, just a long-term sub position,” with less pay and fewer benefits, she said. Her time as a substitute counselor won’t count toward retirement benefits in Texas, she said.
Her next step is to ask for that permanent license. “I want them to honor the judgment and give me the license I fought to have,” she said. Her husband is expected to receive orders in the spring after he finishes training, and they don’t know where they’ll be stationed next. But she’ll be able to transfer her Ohio and Missouri school counseling licenses, to another state, she said, because they’re valid for five years.
Portée had some extra firepower in her fight, as the Justice Department filed a statement of interest supporting her request, calling Texas’ actions a violation of the new provision of the SCRA.
Texas education officials never filed a response to Portée’s original complaint. But they did file a response to Portée’s request for a preliminary injunction in the summer, contending that Texas law and the relief act don’t conflict.
Judge Pitman conducted a full analysis of the case “out of an abundance of caution,” he noted, even though Texas education officials didn’t file a response or defend the case.
“The Court also notes that its conclusion would be the same if it did not consider any other filings in this case and only considered Portée’s motion and her complaint,” Pitman wrote.
The relief act requirement that the service member or spouse “has actively used [the professional license] during the two years immediately preceding the relocation” was a central point of the Texas officials’ argument against the preliminary injunction, according to a court document filed on July 7. They contended that Portée doesn’t qualify for relief act protection because she had been licensed as a school counselor for less than two years, and employed as a school counselor for only one year prior to the move.
It was helpful that the judge clarified that point, said Grable, Portée’s attorney. The context in which the word “during” is used “suggests that Congress intended it to mean ‘at a point in the course of,’” Judge Pitman stated. If Congress had required two years of continuous employment, it could have used the phrase “continuously used during,” he noted.
Grable said he hopes that state agencies across the country will look at their regulations, and make sure they’re aligned with the SCRA.
“First and foremost, the fact that a state agency has been found to violate federal law is going to cause other state agencies everywhere to take a closer look,” Grable said.
Pitman also ordered that Portée can recover reasonable attorney’s fees and court costs.
Karen has covered military families, quality of life and consumer issues for Military Times for more than 30 years, and is co-author of a chapter on media coverage of military families in the book "A Battle Plan for Supporting Military Families." She previously worked for newspapers in Guam, Norfolk, Jacksonville, Fla., and Athens, Ga.