A military spouse has won a key battle in her court fight to force Texas education officials to accept her out-of-state school counseling license.
U.S. District Court Judge Robert Pitman granted Air Force wife Hannah Magee Portée’s request for a preliminary injunction on July 21, after Texas refused to recognize Portée’s licenses from Missouri and Ohio, despite a new federal law that provides professional licensing portability for service members and their spouses.
She has also had some extra firepower in her fight, as the Justice Department filed a statement of interest supporting her request, calling Texas’s actions a violation of a new provision of the Servicemembers Civil Relief Act that took effect Jan. 5.
The six-month-old 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.
Following the Justice Department’s statement of interest filed in federal court, Hannah Portée said she was surprised by their action, and grateful. “For the Justice Department to step in and be willing to make a statement on my behalf shows they really do care about their military spouses, and that they’re actually willing to take the step to advocate for us,” she said in an interview with Military Times.
“I hope this case helps all states, and not just Texas, understand the significance of these new rights under the SCRA for both service members and their spouses,” said Portée, who filed the case in May.
The judge’s preliminary injunction in essence says Texas cannot reject Portée’s certifications based on education officials’ argument that she hadn’t worked for two years as a counselor, wrote Pitman, in his order issued in the Western District of Texas in Austin.
This case could also be setting precedent. Pitman noted that “no court has yet interpreted the SCRA’s license portability provision.”
The judge’s order granting the preliminary injunction “is significant to military spouses everywhere because there is now a court order that can be used for support in other disputes that construes the SCRA in a manner favorable to military spouses as Congress intended,” said Portée’s attorney, Brandon J. Grable.
But the matter is not settled yet, said Grable. “While the court granting a preliminary injunction is a substantial win as it allows Hannah to continue her career as a licensed counselor in Texas without interference, this matter is still in litigation,” Grable said. “We have not heard from the Texas defendants, so until we do, we intend to drive ahead until a final judgment is reached in Hannah’s favor.”
Texas Education Agency officials can’t comment on ongoing legal matters, said spokesman Jake Kobersky, in response to Military Times’ request for information about their next steps in response to the court order.
DOJ steps in
Justice officials reminded all state licensing authorities of the new provision on July 13, the same day DoJ filed a statement of interest in federal court in Austin, weighing in on Portée’s case.
“Service members and their families should not face unnecessary barriers to employment because of the sacrifices they make in service to our country,” said Attorney General Merrick B. Garland, in a statement about the notification to state licensing authorities.
Military advocates said they welcome the clarity provided by the Justice Department, and the effort to inform states. “We hope this will help military families, and spouses in particular, have a more seamless experience in transferring their licenses,” said Meredith M. Smith, government relations deputy director for the National Military Family Association.
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Hannah Portée married Capt. David Portée a year ago when he was stationed at Scott Air Force Base, Illinois, and she worked as an elementary school guidance counselor in Missouri. He was transferred to Laughlin Air Force Base, Texas, with a report date of Jan. 9, only a few days after the new license-portability provision took effect.
For now her nascent career is stalled. While she has been interviewed for some of the four school counseling positions open in the local school district, she’s been told that the sooner she gets her Texas license, the better. “They can’t hold a position for me with the expectation that I may or may not get my license,” she said.
If Texas doesn’t agree to accept her counseling licenses from Missouri or Ohio, it could take two to four years to satisfy Texas requirements. She could seek a job as a school counselor at a private school or charter school that would accept her credentials, but there aren’t any current openings at the few such schools in her area.
Meanwhile, her husband’s tour of duty at Laughlin Air Force Base could be anywhere from one to four years, and there’s the possibility they could land at another base in Texas next.
She also needs to rack up continuing education credits to keep her current licenses up to date. “Without a job and without a supporting school district, it’s going to be difficult to get those continuing education credits,” Portée said.
This has long-range ramifications for her career, she said. “Even though there’s a national shortage of school counselors, the shortage varies from state to state,” Portée said. “Depending on where we’re stationed next, school counseling jobs can be very competitive. And it typically comes down to who has the most experience, so being denied the opportunity to work this school year denies me the experience that I might need to secure future employment.”
Portée’s lawsuit names as defendants the Texas Commissioner of Education, the Texas Education Agency and the State Board for Educator Certification. In June, Portée’s attorney filed a motion for a preliminary injunction asking the court to prevent the state from enforcing Texas regulations that are preempted by the relief act, and from enforcing regulations that prohibit Texas schools from employing her as a licensed school counselor.
Texas Education Agency officials declined to comment on ongoing legal matters, said spokesman Jake Kobersky.
The Texas Education Agency was not able to immediately provide numbers of military spouses who work as educators, but the agency website states that officials have waived certain educator certification fees for eligible service members, veterans and military spouses since 2015.
The Texas argument
Texas education officials, in their response to the request for a preliminary injunction, contend that Texas law and the relief act don’t conflict. “Rather, Texas law requires an individual with a non-Texas license to verify two years of experience to receive an exemption from an assessment exam, just as the SCRA requires two years of experience for a license to be deemed ‘covered’ and, thus, portable between jurisdictions,” Texas officials stated in court documents.
The relief act requirement that the service member or spouse “has actively used [the professional license] during the two years immediately preceding the relocation” is a central point of the Texas officials’ argument filed on July 7. They contend 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.
Justice officials responded that Texas misunderstands Congress’s intent. “By requiring that the license have been ‘actively used,’ Congress undoubtedly intended to grant portability to spouses and service members who had actually used their license at some point in the past two years and not throughout the entire time period.”
In his order, Judge Pitman agreed that Portée’s interpretation is consistent with the law’s purpose. The Texas interpretation would seem to undermine Congress’ intent, he stated, “by imposing narrow and seemingly arbitrary restrictions on the ability of service members and their spouses to port their professional licenses.” It could effectively ban newly licensed individuals from porting their credentials across state lines, he stated, and could disqualify experienced people who work part-time or who happened to take work leave recently for medical or personal reasons.
“Given the unpredictable timing and frequency of military-ordered moves, this approach would make license portability impossible for many service members and spouses,” Judge Pitman stated.
Pitman’s order states that Texas is prevented from enforcing its law “with respect to Hannah Magee Portée’s application for a Texas educator certificate to the extent it requires verification of two creditable years of service in the specific student services or administrative area sought.”
And while Texas undoubtedly has a strong interest in regulating the qualifications and licensure of its educators, Pitman noted, “given the national importance of the policy objectives underlying the SCRA, coupled with the relatively limited encroachment to Defendants’ regulatory authority, the Court finds that, on balance, a preliminary injunction will serve the public interest.”
He also addressed the issue of whether irreparable harm would likely be suffered without preliminary injunction, which must be shown in these requests, and whether Portée would likely succeed in her lawsuit. He determined that she has shown she’ll likely succeed on the merits of her lawsuit.
And, he stated, “the loss of opportunity to pursue one’s chosen profession or to find comparable employment can constitute irreparable harm.”
What the law does
According to the new relief act provisions, to qualify for professional license portability, service members and spouses must have moved, because of military orders, to a new location outside the jurisdiction of the authority that issued the license; provide a copy of those military orders to the licensing authority in the new jurisdiction; and have actively used the license or certificate during the two years immediately preceding the move.
In addition, they must remain in good standing with the licensing authority that issued the covered license or certificate, and every other licensing authority that issued a license or certificate valid for a similar scope of practice and in the discipline applied for in the new location. They must also submit to the authority of the licensing authority in the new jurisdiction for the purposes of standards of practice, discipline and fulfillment of any continued education requirements.
The relief act specifically excludes licenses to practice law under this new provision.
Some states have adopted interstate licensure compacts, allowing licensed practitioners to work in other states that are compact members without requiring a new license. The relief act doesn’t apply if the professional license is covered by the same interstate compact for both the state that issued the license and the state where the service member or spouse is relocating. In these cases, the interstate compact determines the requirements.
Department of Justice officials advise service members and spouses who have questions about their rights under this SCRA provision should contact their military legal assistance office for help. Office locations can be found at http://legalassistance.law.af.mil, which includes offices on any military installation.
To report a violation of the SCRA license portability provision to the Justice Department Civil Rights Division, visit https://civilrights.justice.gov/link/4025A.
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Portée’s attorney, Brandon Grable, is an Army veteran who has experienced this frustration firsthand.
“Early on in my marriage, when I was on active duty and my wife was a teacher, and we relocated to Alabama, it took her a couple of years to get the proper certification,” he said.
“With the Department of Justice weighing in, they’re sending a message across the country to other licensing agencies to say, ‘Hey, pay attention here. This isn’t how we do things.’”
For Hannah Portée, the bottom line is that Texas has been keeping her from time spent doing her job, something she doesn’t want happening to anyone else. Guaranteed time at one location is not something military spouses tend to have a lot of, she said.
“If spouses are able to continue working in their career field, having more stable careers, getting higher levels of income… this would improve quality of life,” she said.
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.
