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It’s time again for the back-to-school issue of the Legal Digest, including our round up of important legal developments to remember as you start the 2014-2015 school year.  This year was significant for Texas school districts, as the U.S. Supreme Court weighed in on prayer and benefits for same-sex spouses, the Fifth Circuit considered  the appropriate  standard  for district liability in bullying cases, and the Texas Commissioner  of Education issued several interesting employment decisions.  In addition, the Office of Civil Rights (OCR) released important guidance regarding student discipline and incidents of sexual violence against students.  Without further ado, here is what you need to know to be a legally savvy administrator in 2014-2015.

RELIGION

Town of Greece, New York v. Galloway, 134 S.Ct. 1811 (2014); Legal Digest, June 2014.

The U.S. Supreme Court, voting five to four, held that the practice of a small town in New York of opening its monthly city council meetings with a prayer, which was almost always explicitly Christian, did not violate the First Amendment.

Does this mean that prayers at school board meetings will also pass muster?  It is not crystal clear.  The main opinion, written by Justice Kennedy, repeatedly refers to the fact that this was a meeting for adults who would readily understand that the brief, ceremonial prayer to start the meeting did not mean that the Town of Greece was endorsing religion.  School board meetings, where children are frequently present, are more problematic.

Since the opinion came out, the interest groups have all provided their views, which are in direct conflict with each other.   Surprised?   Expect groups such as Americans  United for the Separation of Church and State to continue to challenge religious activities at school board meetings.

Kountze ISD v. Matthews, 2014 WL 1857797 (Tex. App.— Beaumont May 8, 2014) (unpublished); Legal Digest, June 2014.

In a nutshell, here is a summary of the celebrated Kountze Cheerleader Banner case:

•    The cheerleaders put Biblical quotes on the banners that the football team runs through.

•    The Freedom from Religion Foundation complained to the district.

•    Based on sound legal advice, the superintendent  said: sorry, cheerleaders, but you can’t put those Bible verses on the banners while you are representing your school during a football game.  It’s unconstitutional.

•    The cheerleaders,  backed by the Liberty Institute, sued the district and obtained a favorable ruling from the district court.

•   While the case was on appeal, the district changed its position and allowed Scriptural  quotes on the banners. The court of appeals in Beaumont  ruled that the case was moot, since the district  gave the plaintiffs  what they wanted.

•    The cheerleaders  and their supporters  appealed  to the Texas Supreme Court.

And the case continues, demonstrating  that:   (1) litigation over the role of religion in public life is about principles, not money, which can be much more complicated; and (2) public schools are ground zero in the culture wars over the role of religion in public life.

 

EMPLOYMENT

Employee Benefits/Same-Sex Marriage

United States v. Windsor, 113 S.Ct. 2675 (U.S. 2013); Legal Digest, July/August 2013.

The U.S. Supreme Court held that a portion of the federal Defense of Marriage Act (DOMA) was unconstitutional.   New York state law recognizes same-sex marriages, and thus a federal law that denied federal benefits to a spouse in such a marriage was a denial of due process and equal protection.

Of course, there is much interest in legal developments with regard to same-sex marriage, but this case has little direct impact on daily school operations in Texas schools. To be clear, the Windsor decision only impacts federal benefits (e.g., the Family and Medical Leave Act) for couples who are legally married in a jurisdiction that recognizes same-sex marriage.  A district in Texas must only offer benefits to an employee’s same-sex spouse under these narrow circumstances.

Although not legally required in Texas, some districts have opted to provide benefits to same-sex couples.  The Texas Attorney General has opined that it is a violation of the Texas Constitution for a district to create or recognize the legal status of domestic partnership.1     However, there is no prohibition on offering benefits to same-sex spouses of district employees based on criteria other than domestic partnership.  For example, a district may offer benefits to all members of an employee’s household.

Legal developments with regard to same-sex marriage are worthy of close attention, as the landscape is rapidly changing. In February, a federal district court in San Antonio ruled that Texas’ ban on same-sex marriage was unconstitutional.2      The judge issued a stay while the case is on appeal, so the case has no immediate effect.   Similar cases are being litigated in other jurisdictions  throughout  the country.   Many commentators  expect that the U.S. Supreme Court will eventually rule on this important issue.

Leave

Smith v. Dallas ISD, Dkt. No. 072-R10-0710 (Comm’r Educ. June 5, 2013); Legal Digest, September 2013.

The Commissioner  of Education held that the teacher was not entitled to assault leave.  While on playground duty, the teacher demonstrated some football moves to some students. Later, a 12-year-old student jumped on the teacher’s back.  The Commissioner  concluded that this was an assault, even though the boy did not intend to hurt the teacher.  It was an “offensive touching” that the student should have known the teacher would find offensive.3    Thus it was an assault, but the teacher failed to show that he suffered a physical injury.

Not every assault justifies assault leave. A teacher must also have physical injuries serious enough that time off from work is necessary to recuperate.4    Assaults that fall into the “offensive touching” category rarely result in that kind of injury.

Waters v. Houston ISD, Dkt. No. 073-R10-0710 (Comm’r. Educ. June 20, 2013); Legal Digest, September 2013.

When a teacher comes back from temporary disability leave, the Education Code requires a district to put the teacher to work at the same school if there is an available and appropriate position.  If there is no such position, the teacher must be put back to work by the start of the next “term.”5

In this case, the district did not do that, although the Commissioner  held that the teacher had provided  sufficient notice of her intent to return to work.  The Commissioner  ordered the district to provide pay and benefits to the teacher for the lost time.

Henderson v. Grand Prairie ISD, 2014 WL 1304608 (5th Cir. April 2, 2014) (unpublished);  Legal Digest, May 2014.

Here, the teacher was notified that she would be terminated while she was on FMLA leave. Yikes! Is that OK?  In this case, yes.  The key was that the district had plenty of documentation about its concerns over the teacher’s job performance, and those concerns  had nothing to do with her taking leave.   Moreover, some of the documentation concerned events that occurred before the teacher ever requested leave.  The district granted the teacher all the benefits she was entitled to under the FMLA, but it also terminated her probationary contract at the end of its term.

The case shows that being on FMLA leave does not completely insulate an employee from adverse personnel action, but the district has to be able to show that the action it took was not retaliatory.  That’s where timely and good documentation of job-related concerns comes into play.

Mayeaux v. Houston ISD, 2014 WL 1340083 (S.D. Tex. April 3, 2014) (unpublished);  Legal Digest, June 2014.

There is good documentation, and then there is bad documentation.  In this case, the district’s “Inspector General” issued a report concluding that the JROTC teacher had violated district fundraising procedures and left an unexplained shortfall of more than $3,000.  The report recommended that she be terminated because of this AND because of her absences from work.  Those absences were required due to her active status with the National Guard. The principal objected to the statement about the absences, and the Inspector General revised the report.  The revised report called for termination  “solely” based on improper fundraising. But the report continued to mention the absences.

Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), an employee has a cause of action if the employer takes adverse action and the military service was “a motivating factor.”6    Applying that standard, and citing the Inspector General’s revised report, the court refused to dismiss the case. As the case goes forward, the district will have to show that it would have made the decision to terminate the teacher without regard to her military absences.

Lawyers often encourage administrators to “document, document, document.”  But sometimes, the documentation hurts your cause.  In this case, the district is going to have to continue to explain away why the Inspector General mentioned absences that were required due to military service.

Reassignment

Jenkins v. Crosby ISD, Dkt. No. 043-R10-1211 (Comm’r. Educ. Dec. 19, 2013); Legal Digest, April 2014.

This case addresses the position of principal in the context of a reassignment.   The superintendent  reassigned the principal of an intermediate school to be assistant principal at the high school.  In her appeal to the Commissioner, Ms. Jenkins argued that principals are unique.   They are the “instructional  leader” for the campus and they have many duties imposed by statute. They are not just garden variety educators.

The Commissioner agreed that a principal could not be reassigned to be a classroom teacher, just as a counselor cannot be reassigned  as a nurse and a nurse cannot be made a librarian.   But administrators  can be reassigned to other administrative positions as long as the two positions are not significantly different due to a change in authority, duties, compensation,  or other similar factors.7

This decision reaffirms the broad power that superintendents have when the contract states that the employee can be “assigned and reassigned,”  as Chapter 21 contracts typically do.   In fact, the Commissioner  went so far as to say that a superintendent’s decision will not be overturned even if it is unwise, unfair, arbitrary and capricious.  It will only be overturned if it is illegal. This one was not.

Lopez v. West Oso ISD, Dkt. No. 015-R1-1010 (Comm’r. Educ. Aug. 29, 2013); Legal Digest, November/December  2013.

In another decision defining “professional capacity,” the Commissioner upheld the superintendent’s reassignment of the special education director to program coordinator for the DAEP. Both were administrative positions, and the employee’s salary stayed the same.  There were some differences between the positions, but both were within the same “professional capacity.”

Nonrenewal and Termination

Allenv. Jacksboro  ISD, No. 052-R1-06-2013  (Comm’r Educ. Aug. 5, 2013); Legal Digest, November/December  2013.

The Commissioner  approved the nonrenewal of a teacher’s contract  because  the teacher  took a student  with a disability into a dark room as a punishment, knowing that the student was afraid of the dark.   The teacher argued that she was immune from nonrenewal because she used reasonable force to maintain discipline (leading the child by his hand). Texas Education Code section 22.0512 provides professional employees with immunity from disciplinary actions based on justified use of force.  The Commissioner ruled that the teacher could not be disciplined for leading the child by the hand, but she had no immunity for placing the child in a dark room.  This, according to the Commissioner, was sufficient reason for nonrenewal under the district’s policy.

Vazquezv. Los Fresnos ISD, Dkt. No. 062-R1-07-2013 (Comm’r. Educ. Aug. 21, 2013); Legal Digest, January 2014.

The teacher’s contract was nonrenewed based on complaints that he had made fun of students’ appearance and weight and otherwise disparaged them in the classroom.  The district provided student statements to show that the teacher had done these things.  The teacher argued that the student statements were inadmissible hearsay.

On appeal, the Commissioner noted that if a district retains an independent person to conduct a nonrenewal hearing, the Texas Rules of Evidence will apply to that hearing.   But if the board hears the case, the rules of evidence for administrative hearings apply.  The administrative  hearing rules are more liberal.

The Commissioner ruled that hearsay rules apply in a nonrenewal hearing, but with some liberal exceptions.  Thus the presiding officer has considerably greater discretion than would be the case in a courtroom.  In an administrative hearing, such as a nonrenewal hearing, evidence that would normally be excluded as “hearsay” may be admitted if  it is:  (1)  necessary to ascertain facts not reasonably susceptible of proof; (2) not precluded by statute; and (3) of the type on which a reasonably prudent person commonly relies in the conduct of the person’s affairs.

Here, the principal took written statements from students about things that happened  in the classroom.   Therefore,  the students did not testify at the hearing.  The Commissioner held that the student statements passed the hearsay test for administrative hearings.  Importantly, the Commissioner noted that the principal took the statements by asking open-ended questions, rather than questions that suggested an answer.

De los Santos v. San Diego ISD, Dkt. No. 065-R1-07-2013 (Comm’r. Educ. Sept. 4, 2013); TSALD January 2014

The district’s policy DFBB(LOCAL) stated that a “reduction in force may take place when the Superintendent  recommends and the Board approves a program change. A determination  of a program change constitutes sufficient reason for nonrenewal.” The commissioner  upheld nonrenewal  of the teacher’s contract on this independent basis, finding that board approval of a program change is “all that is required to be proved to support a nonrenewal  based on program change.”  In a typical reduction in force (RIF) based on program change, a board approves the program change recommended by the superintendent, and the board must then identify the affected employment area(s) and apply criteria in accordance with policy to employees in the affected area(s).8  Here, the superintendent did not use the term, “employment area,” when making a recommendation to the board that a private company take over certain district operations; however, the commissioner found the superintendent’s statements clearly defined the employment area. Since there was only one employee in the designated area, there was no need to go on to apply the criteria in district policy.

Aleman  v. Edcouch-Elsa  ISD, 2013 WL 6002219  (S.D. Tex. Nov. 7, 2013) (unpublished); Legal Digest, February 2014.

The record in the superintendent’s termination case showed that he publicly referred to the school board as “dysfunctional,” “reactionary,” “underhanded,” and “micro-manager types.”  He stated that he “despised the exploitation of children” and that a “few rogue board members insist on running business as usual.” These statements were reported by the local media.  The court found that the superintendent’s comments undermined the working relationship the board needed to have with its superintendent and thus were sufficient grounds for termination and not constitutionally protected under the First Amendment.

This case has engendered a lot of discussion among trustees and administrators,  as it suggests that a superintendent’s  public comments may receive less constitutional protection than the comments  of employees  who are lower on the pay scale.   The court also recognized the confidential relationship between the board and the superintendent,  finding that the board could not be expected to maintain the same level of trust after the superintendent’s highly publicized criticism.

Texas Whistleblower Act

University of Houston v. Barth, 403 S.W.2d 851 (Tex. 2013); Legal Digest, November/December  2013.

The Texas Whistleblower Act (TWA) protects public employees from retaliation based on the employee’s good faith report of a violation of law to an appropriate law enforcement authority.8 Not all rules and regulations  adopted by a school district are going to be “laws” for purposes of the TWA, particularly if they were never officially approved by the school board.9

In this case involving a public university, the Texas Supreme Court held that the university’s System Administrative Manual (SAM) was not a “law” under the TWA.   Thus, an employee’s reporting that the university allegedly violated the SAM did not give rise to a claim under the TWA. To be a “law” for whistleblower purposes, the SAM would have to have been enacted or passed by the University  of Houston Board of Regents, which it was not.

The Court also held that a whistleblower  report must be made in good faith, which has a subjective and objective component.  Subjectively, the employee has to believe that he or she is reporting a violation of law; objectively, the belief must be reasonable based on the employee’s training and experience.  In this case, the Court held that the employee was a lawyer, and as such, his belief that he was reporting a violation of law was not reasonable, based on his training and experience.

Further, the Court held that reports of wrongdoing to internal entities do not invoke the TWA.  The report has to be to an appropriate “law enforcement authority.”10     The Court noted that such an entity must have “authority to enforce, investigate, or prosecute  violations  of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties.  The authority of the entity to enforce legal requirements or regulate conduct within the entity itself is insufficient to confer law-enforcement authority status.”11

Ysleta ISD v. Franco, 417 S.W.3d 443 (Tex. 2013); Legal Digest, February 2014.

Here, the Supreme Court of Texas considered a whistleblower claim in the K-12 context.   The employee  in this case was a principal who reported alleged violations of the Asbestos Hazard Emergency  Response Act to various district officials, including the superintendent  and board of trustees.   Following its own precedent, the Court held that reports of alleged legal violations to internal authorities were not sufficient to create a whistleblower case.  Moreover, cases that allege only internal reports should be dismissed for lack of jurisdiction.

National Origin Discrimination

Garcia v. Garland ISD, 2013 WL 5299264 (N.D. Tex. Sept. 20, 2013) (unpublished);  Legal Digest, January, 2014.

Garcia was a Hispanic woman and a former cook at Garland ISD.  She sued the district, claiming discrimination,  retaliation, and hostile  work environment  based on her national  origin. The district argued that Garcia’s  claims were untimely,  since they related to a charge she had filed in 2010 with the Equal Employment Opportunity Commission (EEOC).  However, the court found that Garcia could still sue the district as long as she could establish a series of related acts (known as a “continued violation”), at least one of which was timely.

The court also found that Garcia stated a hostile work environment claim based on her allegations of daily ridicule, name-calling, and a ban on speaking Spanish in the kitchen.   Garcia claimed further that the district had not responded appropriately by failing to notify Garcia’s supervisor and only interviewing three non-Hispanic employees about her complaints.  There was also a fact question regarding whether Garcia’s supervisor had instituted a blanket policy against speaking Spanish in violation of Title VII.  Therefore, Garcia was permitted to proceed on the merits of her case.

The EEOC has specific rules about this situation.  “English only” rules are divided into two categories.   The first category is the type of across-the-board, no exceptions rule that Garcia alleged existed in the kitchen at Garland ISD—if an employee is going to speak at work any time, it must be in English.  The EEOC describes a rule like that as “a burdensome term and condition of employment.”  The EEOC will “presume that such a rule violates Title VII and will closely scrutinize it.”12   “Closely scrutinize”  is a euphemism.   What it really means is “EEOC wins; employer loses.”

On the other hand, an employer, such as a school district, may enforce  a rule requiring  the use of English  “at certain times where the employer can show that the rule is justified by business  necessity.”13      The employer  also has to show that it has informed its employees of the “general circumstances when speaking  only in English is required and of the consequences of violating the rule.”

 

STUDENTS

Constitutional Rights

Wyatt v. Fletcher, 718 F.3d 496 (5th Cir. 2013); Legal Digest, July/August 2013.

In this case, two female coaches cornered a female student in a locker room, locked the door, and questioned her about a number of things, including her association with another young woman.  The coaches then shared the content of that discussion with the student’s mother, revealing the student’s sexual identity to her mother in the process.  The mother sued the coaches in their professional and personal capacities, alleging that the coaches’ conduct violated her daughter’s Fourth Amendment  right to be free from unreasonable search and seizure and her constitutionally protected right to privacy.

The Fifth Circuit held that (1) it is not “clearly established” that coaches privately and aggressively questioning a student athlete n a locked locker room were violating the Fourth Amendment; (2) verbal abuse and threats do not violate the U.S. Constitution; and (3) it is not clearly established that the disclosure of a student’s sexual orientation to her mother in the context of a discussion of the student’s participation in school activities is a violation  of the constitutional  right of privacy.   Since there was no violation of constitutional standards that were clearly established, the coaches were entitled to qualified immunity.

By no means does this decision condone school staff openly discussing a student’s sexual orientation with others. The decision is quite limited. The coaches discussed the student’s sexual orientation with her mother, and there was a context for it—concerns over the student’s activities and attitude.  Nor does the decision say that it’s a good idea to lock a student in the locker room and grill her.  The Fifth Circuit merely held that it is not clearly established that such action would violate the U.S. Constitution, therefore it could not be a basis to hold the coaches personally liable.  Actions that do not violate the Constitution might still violate professional  standards,  local policy, or expectations  of your supervisor.

B.H. v. Easton Area School District, 725 F.3d 293 (3rd Cir. 2013); Legal Digest, September 2013, Law Dawg Column.

The Third Circuit, which has jurisdiction over federal courts in Pennsylvania,  Delaware and New Jersey, held that “I (heart) Boobies” bracelets were constitutionally protected as free speech in the school setting.  The court held that the bracelets were “ambiguously lewd.”  Things that fall into that category can be prohibited  in the school setting only if the message could not plausibly be interpreted as commenting on political or social issues.   Since these bracelets  could plausibly  be interpreted as commenting on the important social issue of breast cancer awareness, they were protected as free speech.

This is the kind of case that makes us appreciate assistant principals.   The Third Circuit divided “lewd and vulgar” into three categories:  (1) plainly lewd; (2) ambiguously  lewd and not plausibly commenting on political or social issues; and (3) ambiguously lewd but plausibly commenting on political or social issues.   Your dress code can prohibit  the first two, but not the third.

Many legal commentators were dissatisfied with the court’s analysis, which places a difficult burden on campus administrators to distinguish the true intent of a 13-year-old boy wearing an “I (heart) Boobies” bracelet.  (Though we have met many assistant principals with eyes in the backs of their heads, we do not know if they can also read minds.)  While the Third Circuit’s ruling is not binding authority in Texas, it would be considered persuasive  if this issue were to be litigated here. In March of 2014, the United States Supreme Court declined to take up the school district’s appeal.

Interdistrict Transfers

Child v. Skidmore-Tynan ISD, Dkt. No. 026-R5-1110 (Comm’r. Educ. Aug. 7, 2013); Legal Digest, November/December 2013.

The Commissioner held that the district violated the Education Code by revoking the student’s transfer in the middle of the school year (actually, early in the school year—September  14). The law permits students to “transfer annually.”15 The Commissioner interprets this to mean that the transfer cannot be revoked in mid-year.   In practice, this means that it cannot be revoked due to disciplinary, academic, or attendance problems, but only for failure to pay tuition.

Districts are not required to accept transfer students; this is a local decision reflected in your FDA(LOCAL) policy.  Given the restrictions on the district’s ability to be selective with transfer students,  some boards of trustees may decide not to continue this practice.

Discipline

Office of Civil Rights (OCR) and Department of Justice (DOJ) Joint Guidance  on “Nondiscriminatory  Administration of School Discipline” (Jan. 8, 2014).16

In January 2014, the Civil Rights Division of the U.S. Department of Justice and the Office of Civil Rights (OCR) division  of the U.S. Department  of Education  got together  to issue an important “Dear Colleague Letter” (DCL) intended to assist public schools in improving disciplinary practices and, more specif ically,  to reduce  widespread  racial disparities  in school discipline.

The DCL discussed  data, based on OCR studies, finding that the “increasing use of disciplinary sanctions such as in-school and out-of-school suspensions, expulsions, or referrals to law enforcement authorities creates the potential for significant, negative  educational  and long-term  outcomes[.]”   The DCL also discussed OCR’s approach to investigations regarding allegedly discriminatory discipline practices.  It is clear from this information  that good documentation  of disciplinary  decisions is essential.  If OCR investigates, a district will need to provide full and accurate data and will need to justify any apparent disparities in rates or types of discipline.

The DCL also contains an appendix with detailed recommendations for improving school climate and reducing classroom removals, including guidelines for staff training, student supports, and appropriate use of law enforcement.   Given the focus on school discipline and racial disparities, on both a state and federal level, principals should consider this guidance a must-read. In addition, districts should consider incorporating  the DCL in required professional development for administrators.17

Title IX

OCR’s  “Questions  and Answers  on Title IX and Sexual Violence” (Q&A) (April 29, 2014); Legal Digest, June 2014.18

In April of 2014, OCR issued more important guidance for school districts.  This time the subject was “sexual violence” and Title IX.  Title IX is popularly known as the law that prohibits disparities  between boys’ and girls’ athletic programs;  in fact, the federal statute prohibits sex discrimination in all of a public school district’s programs and activities.19   OCR, which is charged with enforcing Title IX and other federal civil rights laws, has issued guidance in the past regarding school districts’ duties under Title IX concerning student-to-student sexual harassment.20 This Q&A was intended to supplement OCR’s earlier guidance.

First, understand that “sexual violence” does not only mean rape.  “Sexual violence” in the Q&A means any “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent,” e.g., because of the student’s age, drug or alcohol use, or disability.  The Q&A applies equally to nonphysical sexual harassment.

Traditionally,  courts have applied a high standard to cases in which a school district is sued under Title IX for student-to- student sexual harassment.   A district could only be held liable for the harassment if the district had actual knowledge of the harassment and responded with deliberate indifference.21     In the Q&A, OCR explains that it uses a different, lower standard when it investigates  claims of student-to-student  sexual harassment. For the purposes of OCR’s administrative  enforcement  of Title IX, a district is responsible when:

1.     The alleged conduct is serious enough to limit or deny a student’s participation in school, i.e., it creates a hostile environment; and

2.     The school, upon notice, fails to take prompt and effective steps to end the conduct, eliminate the hostile environment, prevent its recurrence, and appropriately remedy its effects.

The Q&A makes clear that “notice,” for OCR’s purposes, could include almost any district employee’s awareness of the sexual violence.  A district is deemed to have notice of sexual violence when a “responsible employee” knew, or should have known, about the conduct. The Q&A states that whether a person is a responsible employee depends on a number of factors, including the age and education of the student.  For example, “it may be reasonable for an elementary school student to believe that a custodial staff member or cafeteria worker has the responsibility to address student misconduct.”  This is an important reason to train all district employees who might have any interactions with students on the district’s policy and duties under Title IX. The Q&A offers specific guidance for developing that training.

The Q&A also contains detailed guidance regarding how to conduct an appropriate investigation into allegations of student- to-student sexual violence, including procedures to ensure student confidentiality during and after the investigation.  Notably, the Q&A also clarifies that Title IX applies to claims of harassment or discrimination based on a student’s failure to conform to gender stereotypes and discusses previously overlooked student groups, such as LGBT students, students with disabilities, undocumented immigrants, and foreign exchange students.

Special Education/Section 504

Stewart v. Waco ISD, 711 F.3d 513 (5th Cir. 2013), vacated, 2013 WL2398860 (5th Cir. June 3, 2013) (en banc) (unpublished); Legal Digest, July/August 2013

In this complicated series of decisions concerning Andricka Stewart, a special education student in Waco, the Fifth Circuit grappled with the appropriate legal standard to apply to allegations of disability discrimination based on bullying.  Andricka alleged that she was sexually abused by her peers at school. According to Andricka, the district initially modified her Individual Education Program (IEP) to address the abuse, but took no further action when the abuse continued.

A panel of the Fifth Circuit held that Andricka had stated a claim under Section 504, because she alleged that the district had discriminated against her based on her disability by failing to modify her IEP, and it was plausible that this failure to act constituted “gross misjudgment,” or refusal to provide reasonable accommodations.   The panel also held that Andricka was not required to exhaust the administrative remedies available to her under the Individuals  with Disabilities  Education Act (IDEA). The panel reasoned that IDEA was designed to address educational harm, not severe physical injury.

The Fifth Circuit agreed to rehear the case en banc, i.e., by the whole court, and vacated the panel’s decision.  The en banc court remanded  the case back to the district court,   which the court held had not adequately considered whether Andricka’s claims were barred by procedural issues such as timeliness or failure to exhaust administrative  remedies.

C.L.v. Leander ISD, 2013 WL 6837741 (W.D. Tex. Dec. 20, 2013) (unpublished);  Legal Digest, April 2014.

While Andricka Stewart’s case wound its way through the courts, another case alleging bullying and disability discrimination hung in the balance.   C.L. was a blind and autistic student who was sexually assaulted by other students in the bathroom at school.  C.L. sued Leander ISD, alleging that school officials’ failure to prevent his attack constituted disability discrimination under Section 504. The first time the trial court considered C.L.’s case, the court found, based on the panel’s decision in Stewart, that C.L. had successfully stated a claim because he alleged that the district knew about his disability  and failed to investigate his complaints about bullying.  After the Fifth Circuit’s reversal, the C.L. court had to revisit the issue of what standard to apply. Based on decisions prior to Stewart, the court said that C.L. had to show that school officials showed professional bad faith, or “gross misjudgment.”

The trial court ultimately granted the district’s motion to dismiss.   Each time C.L.’s parent complained  that her son was being mistreated, district employees responded promptly and appropriately.   Also, none of the reported  complaints  should have alerted the district that C.L. would be sexually assaulted in the bathroom.

Estate of Montana Lance v. Lewisville  ISD, 743 F.3d 982 (5th Cir. 2014); Legal Digest, April 2014.

This is a tragic case involving a nine-year-old boy who hanged himself in the nurse’s locked bathroom  at the school. The parents alleged that the boy’s suicide was the culmination of a long campaign of disability-related harassment by other students that the school district ignored.

The Fifth Circuit stated that parents in such a case have the burden of proving five things: (1) that the student had a disability; (2) that he was harassed based on his disability; (3) that the harassment  was severe or pervasive to the point that it created an abusive educational environment for the student; (4) that the district knew about the harassment; and (5) that the district was deliberately indifferent to the harassment.

Notice that only the fifth factor is completely within the control of the school district.  Thus, school lawyers frequently attempt to get cases like this dismissed based on the argument that the parents cannot possibly prove that the school responded to what it knew with deliberate indifference.  That argument prevailed in this case. The court held that Lewisville ISD conducted investigations, took disciplinary action when appropriate, provided training, contacted  parents and took other steps that indicated that the district was not deliberately indifferent.

 

LIABILITY

Yara v. Perryton ISD, 2014 WL1273808 (5th Cir. March 31, 2014) (unpublished);  Legal Digest, May 2014.

This case may cause principals to supervise activities of social studies teachers a little more closely.  The world history teacher provided a two-day enrichment activity for sophomores to better understand  World War II, Nazis and the Holocaust. The school called these “Red Ribbon Days.”  Half the class was assigned to wear red ribbons, which meant that they could be harassed and discriminated against by the others.  One day you wore the red ribbon and experienced persecution; the second day you were the persecutor.   One day you are the Jew.   The next day you are Hitler.

We expect that many sophomores would love this.

On Andrew Yara’s day of persecution,  his cousin took advantage of the situation by ordering Andrew to carry him on his back to class.  Another kid jumped on them as Andrew did this. Andrew got hurt. Andrew sued the district alleging violations of various parts of the U.S. Constitution.   The court dismissed the case. As a general rule, the Constitution does not impose liability for accidents.   Physical injuries that are caused by negligence are usually resolved in state court under state law.

The Fifth Circuit also confirmed that the board of trustees is the ultimate policy maker for the district.   For constitutional claims against school districts, plaintiffs must generally  establish that the conduct they are complaining  about happened  as a result of an official policy.22     In this case, Andrew could not meet this threshold requirement because the school board had never condoned the Red Ribbon Days.

Mt. Pleasant ISD v. Elliott, 2014 WL 1513291 (Tex. App.— Texarkana April 17, 2014) (unpublished); Legal Digest, June 2014.

The bus driver broke her knee when the brakes failed on the bus.  The driver worked for Durham, a private company, but the district owned and maintained the bus.  The accident was not the driver’s fault—it was due to the brakes failing.  The court held that the district was not liable for the driver’s injury.  Under an exception to the Texas Tort Claims Act, a district is liable for negligence in the “use” or “operation” of a motor vehicle.23   Here, the court held that fixing (or not fixing) the brakes is neither use nor operation, but maintenance.  Therefore, the district could not be held liable.  This decision is on appeal to the Texas Supreme Court.  To be clear, we would not advise you to put the brakes on school bus maintenance.

 

MISCELLANEOUS

Tex. Att’y Gen. Op. GA-1051, (2014); Legal Digest, June 2014.

The Texas Attorney General was asked to clarify an apparent contradiction in the Texas statutes authorizing concealed handguns.   While a board of trustees can authorize individuals to carry concealed handguns on campus through written policy, the law generally prohibits concealed handgun carriers to take their weapons to board meetings, high school athletic events or interscholastic  events.24     The Attorney General’s opinion stated that school boards have the power to authorize an employee or trustee to carry a handgun to a high school interscholastic event (athletics or otherwise) or to a school board meeting.

 

CONCLUSION

We feel confident that this Back to School Case Roundup merely whetted your appetite for the latest developments in school law, so let us close with a shameless plug:

The 9th Annual Back to School Workshop  tour with Jim Walsh is coming to a service center near you!  The Back to School Program will feature a comprehensive review of legal developments that will impact the day- to-day operations of public schools from the classroom, to the principal’s office, and the board room. There are new laws at both the state and federal level as well as newly promulgated regulations and court cases.

Bring your Administrators, Lead Counselors, Special Ed. Staff, and Central Office Team!   Registration is now open at www.legaldigestevents.com/.

 

ENDNOTES

1.   See Tex. Att’y Gen. Op. No.GA-1003 (2013) (concluding that Tex. Const. art. 1, § 32 prohibits the state or a political subdivision from creating or recognizing any legal status identical or similar to marriage).
2.   De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014).
3. See Tex. Educ. Code § 22.003(c); Tex. Pen. Code § 22.01(a).
4. Tex. Educ. Code § 22.003(b).
5. Tex. Educ. Code § 21.409(e).
6. See 38 U.S.C. §§ 4301 et seq.
7. See, e.g., Barich v. San Felipe-Del Rio Consolidated Indep. Sch. Dist., Dkt. No. 117-R1a-484 (Comm’r Educ. 1985) (discussing the meaning of “same professional capacity” in teacher reassignment).
8. Tex. Gov’t Code § 554.002.
9. See Tex. Gov’t Code § 554.001(1) (defining “law” for purposes of the TWA as a “state or federal statute,” “an ordinance of a local governmental entity,” or “a rule adopted under a statute or ordinance”).
10. Tex. Gov’t Code § 554.002(b).
11. Univ. of Houston v. Barth, 403 S.W.3d 851, 857 (Tex. 2013).
12. 29 C.F.R. § 1606.7(a).
13. 29 C.F.R. § 1606.7(b).
14. 29 C.F.R. § 1606.7(c).
15. Tex. Educ. Code § 25.036(a).
16. Lhamon, Catherine, Asst. Sec’ty, OCR, U.S. Dept. of Educ., and Samuels, Jocelyn, Acting Asst. Att’y Gen’l, Civil Rights Division, U.S. Dept. of Justice, “Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline,” (Jan. 8, 2014), available at http://www2.ed.gov/print/about/offices/list/ocr/letters/colleague-201401-title-vi.html.
17. See Tex. Educ. Code § 37.0181 (requiring each administrator with authority over discipline to attend professional development regarding Chapter 37 disciplinary procedures at least once every three years, including the difference between discretionary and mandatory removals).
18. Lhamon, Catherine, Asst. Sec’ty, OCR, U.S. Dept. of Educ., “Questions and Answers on Title IX and Sexual Violence,” (April 29, 2014), available at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
19. 20 U.S.C. §§ 1681 et seq.
20. Ali, Russlynn, Asst. Sec’ty for Civil Rights, U.S. Dept. of Educ., “Dear Colleague Letter: Sexual Violence,” (April 4, 2011), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.
21. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999).
22. See Rivera v. Hudson Indep. Sch. Dist., 349 F.3d 244 (5th Circ. 2003)( holding that a successful Section 1983 claim against a school district requires the plaintiff to demonstrate that harm resulted from an official policy or custom of the district).
23. Tex. Civ. Prac. & Rem. Code § 101.021.
24. Tex. Pen. Code §§ 46.03; 46.035(b)(c).

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