Open-Enrollment Charter Schools
WAS THE OPEN-ENROLLMENT CHARTER SCHOOL SUBJECT TO THE TEXAS WHISTLEBLOWER ACT?
Case citation: PegasusSchoolofLiberalArts& Sciences v. Ball-Lowder, 2013 WL 6063834 (Tex. App. – Dallas 2013) (unpublished).
Summary: Pegasus School of Liberal Arts & Sciences was a private nonprofit corporation that operated an open-enrollment charter school in Dallas under a charter contract with the State of Texas. Kimberly Ball-Lowder was a teacher at Pegasus who complained about allegedly illegal activity there, first to school officials, and then to the State Auditor’s Office, the Dallas Fire Department, the Texas Charter School Association, the Dallas County District Attorney, and the Texas Education Agency. After Ball-Lowder was fired, she sued the school for wrongful discharge under the Texas Whistleblower Act. The school filed a plea to the jurisdiction, arguing that jurisdiction did not exist because the Whistleblower Act was not applicable to Texas open-enrollment charter schools. The trial court disagreed and denied the school’s plea to the jurisdiction. The school appealed the trial court ruling.
Ruling: The court of appeals affirmed the trial court ruling, holding that the Whistleblower Act applied to open-enrollment charter schools. In doing so, the appeals court looked to its prior holding in LTTS Charter School, Inc. v. C2 Construction, Inc. which held that an open-enrollment charter school fell within the definition of a “local governmental entity” for the purposes of Local Government Code § 271.151. [See, LTTS Charter School, Inc. v. C2 Construction, Inc., 358 S.W.3d 725 (Tex. App. — Dallas 2011); Texas School Administrators’ Legal Digest, April 2012].
The appeals court, in this case, observed that although it had to interpret the Whistleblower Act rather than the Local Government Code, the relevant statutory provisions were almost identical. Open-enrollment charter schools are part of the public school system, have responsibility for implementing the state’s school system of public education, and are subject to the state laws and rules governing public schools. Further, an “odd result” would occur if an open-enrollment charter school, which is immune from liability to the same extent as a school district, was not subject to the waiver of immunity under the Whistleblower Act. In that case, an open-enrollment charter school would enjoy greater immunity than a school district and other purely governmental entities. Thus, the appeals court held that an open-enrollment charter school is a “local governmental entity” for purposes of the applicability of the Whistleblower Act. The trial court properly denied the charter school’s plea to the jurisdiction.
School District Liability
WAS THE SCHOOL DISTRICT LIABLE FOR THE STUDENT’S DROWNING DEATH?
Case citation: Estate of C.A. v. Castro, Fed. Appx. __,2013 WL 6155819 (5th Cir. 2013) (unpublished).
Summar y: C.A., a senior at a high school in the Houston Independent School District, drowned in the school’s swimming pool where students were playing after concluding a physics experiment. The physics teacher assigned her class a project requiring them to build boats from only cardboard and duct tape in order to teach them about buoyancy. Although the official rules of the experiment instructed students to stay in the shallow end of the pool and to enter the water only while performing the experiment, it was alleged that those rules historically were not followed. The school’s swim coach served as a lifeguard during the course of the experiment but left when the experiment was over. The record showed that, as the class finished the experiment, some of the kids jumped into the deep end of the pool together. It was disputed whether the teacher gave the students permission to do so. C.A. did not surface from the water and the other students left the pool area without noticing C.A. Within a few minutes, a student on the school’s swim team noticed something in the water and notified the school’s swim coach. The science teacher and the student pulled C.A. out of the water. The swim coach instructed someone to get the school nurse and dial 911. Paramedics tried to revive C.A., but he later died.
The parents sued the school district, the principal, and the science teacher under 42 U.S.C. § 1983, claiming violations of their son’s constitutional rights to due process under the Fourteenth Amendment to the United States Constitution. In response, the principal and science teacher sought dismissal of the claims against them pursuant to qualified immunity and the trial court granted the defendants’ request for qualified immunity. [See, Estate of C.A. v. Grier, 2011 WL 3902750 (S.D. Tex. 2011) (unpublished); Texas School Administrators’ Legal Digest, November/December 2011]. The school district also requested judgment in its favor prior to trial, and the trial court entered judgment in favor of the district as well. [See, Estate of C.A. v. Grier, 2013 WL 177664 (S.D. Tex. 2013); Texas School Administrators’ Legal Digest, March 2013]. The parents appealed both trial court decisions to the Fifth Circuit Court of Appeals.
Ruling: The Fifth Circuit affirmed the judgment in favor of the school district, the principal, and the science teacher. The appeals court held that the principal and teacher were entitled to qualified immunity because the parents failed to identify a constitutional violation or demonstrate that any alleged constitutional violation was “clearly established” at the time of the events in this lawsuit. The parents claimed that the defendants deprived C.A. of his “right to life.” The Fifth Circuit observed that, while the “right to life” exists, the parents did not allege a purposeful or intentional act by the individual defendants. The appeals court stated: “Even assuming the individual defendants caused C.A. ‘to be subjected’ to a loss of life, this would not make out a cognizable constitutional violation without more particularized authority prohibiting defendants’ conduct.” The parents claimed that the district defendants violated school district policy and city ordinances on school safety. However, according to the appeals court, those safety regulations did not create individual entitlements protected by the Fourteenth Amendment.
Even if the parents stated the violation of a constitutional right in the handling of the science project that resulted in C.A.’s death, the right was not “clearly established.” To overcome the defense of qualified immunity, the contours of the alleged constitutional violation must be “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Here, the parents alleged that district officials designed and implemented a curriculum that was deliberately indifferent to a serious risk of harm to the students who were legally required to attend school, and that caused the death of C.A. However, the parents did not identify controlling legal authority that would have put the defendants on notice that their conduct violated a clearly established constitutional right.
With respect to the school district, the parents claimed that the district could be held liable under the “state-created danger” theory. The Fifth Circuit did not explicitly reject such a theory of liability, but held that the parents’ lawsuit did not meet the elements of such a claim. To make out a “state-created danger” claim, a plaintiff must show “(1) that the environment created by the state actor is dangerous, (2) the state actor must know it is dangerous (deliberate indifference), and (3) the state actor must have used its authority to create an opportunity that would not otherwise have existed for the third party’s crime to occur.” Further, the “state-created danger theory is inapposite without a known victim.”
In this case, the Fifth Circuit held that, even assuming that the district’s customs and policies created a dangerous environment that would not otherwise have existed and to which it was deliberately indifferent, it could not be said that the district was deliberately indifferent with respect to a known victim. In other words, the parents did not demonstrate that the district knowingly created a risk that C.A. would drown, as opposed to a general risk for students who could not swim. The fact that a school policy or procedure presents a risk of harm to students in general is not enough to establish a “state-created danger” claim. Thus, the Fifth Circuit declined to adopt the state-created danger theory of liability in this case. The appeals court affirmed the judgment in favor of the defendants.
Comments: The 5th Circuit continues to neither endorse nor reject the “state created danger” theory of liability. As in previous cases, the court simply says that the facts presented would not satisfy such a theory. This case also is yet another illustration of the fact that the severity of the injury does not change the legal analysis.