While the Texas Whistleblower Act is well known to Texas board members and administrators, it is not the only or the most significant whistleblower act that applies to Texas Public Schools.  The National Defense Authorization Act’s whistleblower protections (NDAA) apply whenever a public school has a federal contract or grant.  41 U.S.C.A. § 4712.  As the federal government has many contracts and grants with school districts, there are many instances when the NDAA’s whistleblower protections will apply.  Special education and school lunches may be the most obvious, but any federal contractor grant is covered by the NDAA.  If it does apply, the potential liability for a school district is greater than the potential liability under the Texas Whistleblower Act and the difficulty of a school district defending against a claim is greater.  The Courts have found that the NDAA does not apply to TEA because of 11^th Amendment immunity.  Texas Education Agency, Texas Education Agency v. Dept. of Education, 0992 F3d 350 (5^th Cir. 2021).  However, a federal district court has just ruled that NDAA applies to Texas Public Schools.  Tolman v. Brownsville Indep. Sch. Dist.,2025 WL 1707299 (S. Dist. Texas, Brownsville Div. June 18, 2025).  

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Who is Covered

An employee is covered by the NDAA if the employee alleges gross mismanagement, gross waste of federal funds, abuse of authority, a danger to public safety, or a violation of a law, rule, or regulation related to the federal contract or grant and makes a report not just to law enforcement agencies, but also to whole host executive officials, courts, grand juries, and school district managers who are responsible for investigating misconduct.  If the employee is covered, the public school cannot retaliate against the employee.  This differs from the Texas Whistleblower Act which requires a report of a violation of law to law enforcement.  A report of gross mismanagement, gross waste, or public danger, even when these are not unlawful, triggers the coverage of the NDAA, while they would not trigger the coverage of the Texas Whistleblower Act.  Many Texas Whistleblower Act cases are dismissed because a report was not made to law enforcement.  Under the NDAA, reports to many individuals who are not law enforcement are sufficient.  

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Potential Liability

If a violation is found, the following relief can be ordered:

·        Compensatory damages, with no limits;

·        All costs and expenses, including attorneys’ fees and expert witness fees, which include both Dept. of Education attorneys’ fees and costs and the employee’s attorneys’ fees and costs;

·        Reinstatement of the employee to the position previously held;

·        Affirmative action to abate the reprisal; and

·        Consideration of disciplinary action against any official of the entity.

Unlike the Texas Whistleblower Act, which limits compensatory damages such as future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life to at most $250,000, there are no limits under the NDAA.  Under the Texas Whistleblower Act, reinstatement can be ordered to the previous position or an equivalent position.  Under the NDAA, reinstatement must be to the previous position.  The potential monetary liability for a school district is far higher under the NDAA, and the school district may well have tore-employ the individual in the same position.

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Difficulty of Defending

Unlike the Texas Whistleblower Act, which requires an employee to file suit against a governmental entity, the NDAA only requires the employee to file a complaint with the Department of Education Office of Inspector General.  Once a complaint is filed and is determined not to be frivolous, the OIG begins investigating.  The public school is specifically prohibited from obtaining information from or about the complainant with limited exceptions.  The OIG then investigates and issues a report.  Up to this point, the process is not at all like a judicial process. While not required by statute, when TEA alleged due process violations because TEA was not given an opportunity to see the evidence against it and to respond, in the above-cited 5^th Circuit case, the Department of Education provided an evidentiary hearing in D.C.  

When the preliminary process is complete, the report goes to the Secretary of Education, who issues an order, which may include any or all of the relief previously listed.  Any appeal of the order goes straight to the 5^th Circuit.  There is no appeal to a district court, and the Department of Justice will defend the order in court.  

Hence, it is possible for an employee to obtain all the relief provided while never having hired an attorney. In effect, the employee’s case may be made by Department of Education staff and attorneys, and any appeal of an order in favor of the employee would be defended in court by the Department of Justice.  However, the employee may be represented by counsel before the DOE and before the Fifth Circuit. While the employee can recover court costs and attorneys’ fees, the public school cannot.

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Conclusion

The NDAA has the potential to create significant liability for Texas Public Schools.  The best defense for public schools is to ensure compliance with the law and to manage all federal contracts and grants efficiently. It goes without saying all claims of waste, mismanagement and danger need to be taken seriously.

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