Qualified Immunity
WAS THE SUPERVISOR ENTITLED TO IMMUNITY?
Case citation: Petrie v. Salame, __ Fed. Appx. __, 2013 WL 5835612 (5th Cir. 2013) (unpublished).
Summary: Matthew Petrie worked for the City of Grapevine Police Department as a Middle School Resource Officer (SRO) and taught the Drug Abuse Resistance Education (DARE) program. Toward the end of the 2008-09 school year, Petrie learned that the Grapevine Independent School District was considering eliminating the DARE program. Petrie met with the Chief of Police for the City of Colleyville to discuss retaining and improving the program. He later met with Edward Salame, the Chief of Police for the City of Grapevine. Salame asked if Petrie had met with anyone else to discuss the DARE program. When Petrie admitted that he had spoken with the chief of police in Colleyville, Salame informed him that he had gone outside of the chain of command. Within a few months, Petrie was transferred from the SRO position to uniformed patrol duties. Petrie filed suit against Salame and the City of Grapevine, claiming that they retaliated against him for exercising his free speech rights under the First Amendment. The trial court granted a pretrial judgment in favor of the city, but denied Salame’s request for judgment in his favor based upon the defense of qualified immunity. Salame then sought an immediate, pretrial appeal with the Fifth Circuit Court of Appeals.
Ruling: The Fifth Circuit affirmed the trial court’s decision to deny Salame qualified immunity. To establish a First Amendment retaliation claim, Petrie had to prove that (1) he suffered an adverse employment decision, (2) his speech involved a matter of public concern, (3) his interest in speaking outweighed the City’s interest in promoting efficiency, and (4) the protected speech motivated the defendants’ conduct. Whether a public employee has spoken on a matter of public concern depends on the role the speaker occupied when speaking and whether the speech was part of, or closely related to, his job duties.
Here, the Fifth Circuit determined that when Petrie spoke to the chief of police, he was speaking as a citizen on a matter of school curriculum related to the DARE program. Thus, he was speaking as a private citizen on a matter of public concern. Further, Petrie’s interest in speaking in favor of the DARE program outweighed the City’s interest in efficiency. The court emphasized that Petrie was off duty, out of uniform and speaking to someone outside of his chain of command.
The Fifth Circuit rejected the defendants’ argument that the transfer from SRO to patrol duties did not amount to an adverse employment action. Evidence showed that a patrol officer was typically an entry-level position with a lower level of prestige than an SRO. Petrie’s position also required him to work Saturdays and holidays, and required more dangerous and physically taxing work. Thus, a fact issue existed as to whether the transfer was an adverse employment action. The appeals court concluded that disputed issues of material fact existed to support Petrie’s First Amendment claims.
The Fifth Circuit observed that the next step in the qualified immunity analysis was to decide whether the challenged conduct by Salame was objectively reasonable in light of clearly established law. At the time of the alleged violations here, Supreme Court and Fifth Circuit cases had recognized retaliation claims by government employees for engaging in protected speech. The law was clearly established that speech similar to Petrie’s was protected from retaliation under the First Amendment. Because Petrie had stated a valid First Amendment claim, and Salame’s conduct was not objectively reasonable in light of the clearly established law, the Fifth Circuit upheld the trial court decision denying Salame the defense of qualified immunity.
Things to Remember: This case is not scheduled to be published in the official legal reporter for 5th Circuit cases, and thus, is not precedent except as per limited 5th Circuit rules. Nevertheless, it is illuminating as a very broad view by the court of the notion of “adverse employment action.” The man’s pay was not cut, but his new position was deemed less prestigious.
School District Liability
WAS THE SCHOOL DISTRICT LIABLE FOR THE STUDENT’S DROWNING DEATH?
Case citation: Estate of A.R. v. Muzyka, __ Fed. Appx. __, 2013 WL 5629863 (5th Cir. 2013) (unpublished).
Summary: A.R. was a nine-year-old, hearing-impaired student in the Houston Independent School District who drowned in a public school swimming pool during a summer enrichment program. The mother and estate of A.R. sued the school district and several of its employees, claiming violations of A.R.’s constitutional rights.
The record showed that A.R. was an elementary school student with severe hearing loss and epilepsy that caused her to have seizures. She attended school at the Regional Day School Program for the Deaf at T.H. Rogers Elementary School. During the summer of 2008, A.R. attended a summer enrichment program, which included swimming at the school’s pool. She had attended the enrichment program in prior summers and the parent provided permission for her to swim. It was disputed whether the summer enrichment teachers knew of A.R.’s epilepsy or seizures. Further, there was no evidence of any prior problems due to swimming or restrictions placed on her ability to swim.
On June 26, 2008, A.R. drowned at the T.H. Rogers pool. An investigation showed that she was sitting on the ledge of the pool, had a seizure, and fell in the water. Evans was a girls’ swim coach assigned to supervise the pool at the time, along with the boys’ swim coach. The lawsuit alleged violations of A.R.’s Fourteenth Amendment rights under 42 U.S.C. § 1983, § 504 of the Rehabilitation Act, Title II of the Americans with Disabilities Act, and state law. Evans and Muzyka, the elementary school principal, requested dismissal of the claims against them based on qualified immunity. The trial court held that Evans and Muzyka were entitled to qualified immunity. [See, Estate of A.R. v. Grier, 2011 WL 3813253 (S.D. Tex. 2011); Texas School Administrators’ Legal Digest, January 2012]. The school district then sought judgment in its favor prior to trial. The trial court held that the school district was not liable under 42 U.S.C. § 1983 for the student’s death and that the ADA and § 504 claims also were without merit. [See, Estate of A.R. v. Grier, 2013 WL 391159 (S.D. Tex. 2013) (unpublished); Texas School Administrators’ Legal Digest, March 2013]. The plaintiffs appealed the trial court ruling only as to the claims against the school district.
Ruling: The appeals court affirmed the judgment in favor of the district. Specifically, the parent argued that she raised genuine issues of material fact on her ADA and § 504 claims because (1) the district intentionally discriminated against A.R. by refusing to provide services necessary to give A.R. safe and meaningful access to the summer program, and (2) grossly deviated from the standard of care in ignoring and mishandling information about A.R.’s seizure disorder.
The main issue was whether the district failed to provide A.R. reasonable accommodations to receive the full benefits of her educational program. The Fifth Circuit had previously noted that facts “creating an inference of professional bad faith or gross misjudgment are necessary to substantiate a cause of action for intentional discrimination under § 504 or ADA against a school district.” Further, something more than mere negligence must be shown.
Here, while the plaintiffs point out many things the district could have done to make the situation safer for A.R., such as more lifeguards and alarm devices, they at most only establish negligence. According to the Fifth Circuit, there was no evidence presented that rose to the level of bad faith or gross misjudgment or deliberate indifference by the school district. There was also no evidence of intentional discrimination against A.R. The record did not establish that A.R. was excluded from the benefits of services, programs, and activities at the school. Thus, the trial court did not err when it entered judgment in favor of the district on the student’s ADA and § 504 claims.
Things to Remember: If this incident had occurred at a private swimming pool, the plaintiff might be able to prevail on a negligence theory in state court. But since the suit is against a school district and school employee who have immunity under state law, the plaintiff sought recovery under federal law. In its decision, the court notes that, “Congress did not intend Section 504 or ADA claims to create general tort liability for the government.”
Charter Schools
DID THE PARENTS AND EMPLOYEES STATE VALID CLAIMS STEMMING FROM THE CLOSURE OF THE CHARTER SCHOOL?
Case citation: Comb v. Rowell, __ Fed. Appx. __, 2013 WL 5913615 (5th Cir. 2013) (unpublished).
Summary: Benji’s Special Educational Academy, Inc. was granted an open-enrollment charter in 1998. However, in September of 2010, after providing notice and an opportunity to respond, the Commissioner notified the Academy’s executive director, Theaola Robinson, that a Board of Managers and new superintendent would be appointed to the school due to financial, academic, and governance issues at the Academy. Under the Education Code, the appointment of the Board of Managers suspended the powers of the Academy’s board of directors and Robinson. Shortly thereafter, the Board of Managers held a board meeting in which it voted unanimously to suspend all school programs. Rick Schneider, the new superintendent, provided notice to the students that was to be taken home to their parents that the board voted to close the school effective that day. The parents were encouraged to enroll their students at other area schools and were given two days to collect student records.
In response, that same day, Robinson told students to rip up the notice from Schneider. She also held an assembly in which she allegedly told students that TEA did not think they were “good enough” to be at the Academy and that it was shutting the school for that reason. Robinson also held a televised conference indicating that the school would remain open. Schneider resigned and Ron Rowell was appointed superintendent. The following day, Rowell was not allowed access to the campus. Thereafter, the Commissioner suspended the Academy’s authority to operate the charter school, citing conditions at the Academy that presented a danger to the health, safety, or welfare of the students. Ultimately, following a hearing, the Commissioner issued an order revoking the Academy’s charter and permanently closing the school.
A group of parents, guardians, and teachers filed suit challenging the closure of Benji’s Special Educational Academy, Inc. The parents and guardians of former Benji’s students claimed violations of the Individuals with Disabilities Education Act (IDEA) and 42 U.S.C. § 1983. Randolph Nichols and Nancy Watta, former teachers who lost their jobs as a result of the closure, alleged violations of their due process rights. They sued Schneider, Rowell, the then Commissioner of Education Robert Scott, and the Board of Managers appointed by the Texas Education Agency. The defendants then sought judgment in their favor prior to trial. The trial court rendered judgment in favor of the defendants, finding that the parents had failed to exhaust administrative remedies and the employees did not have a protected property interest because they were at-will employees. [See, Comb v. Benji’s Special Education Academy, 2012 WL 1067395 (S.D. Tex. 2012); Texas School Administrators’ Legal Digest, May 2012]. The plaintiffs then appealed to the Fifth Circuit Court of Appeals.
Ruling: The appeals court affirmed the judgment in favor of the defendants. The appeals court held that the plaintiffs could not escape the administrative exhaustion requirements set out in the Individuals with Disabilities Education Act (IDEA) by pleading a cause of action under § 1983 based on violations of their IDEA rights to notice. With respect to the teachers, the trial court properly dismissed those claims as well. The teachers’ contracts contained an “At Will Statement,” confirming that they were employed on an at-will basis. Because they were at-will employees, the teachers did not have a protected property interest in continued employment. Thus, the teachers could not maintain due process claims against the defendants. The appeals court affirmed the judgment against the plaintiffs.
