“It’s all fun and games until someone gets hurt,” is a maxim near the heart of public school football coaches and P.E. instructors the world round. In the student’s realm of block scheduling and crosstown rivalries, the second act of an injury is taken up with wound-nursing, therapy, and perhaps a reduced homework load. For David Smith, a phys ed teacher at Dallas ISD, the second act of his injury played out in a tournament of district battles, fought by proxies with law degrees and refereed ultimately by the Texas Commissioner of Education.
What happened, in January 2009, was that a 12-year-old student—apparently attempting to better understand the nature of the clipping penalty—jumped on his back while he was in the middle of instruction. Smith asked for assault leave and didn’t get it. Litigation ensued.
This June the Commissioner awarded the match to the District, finding that although the coach was indeed assaulted, he was not entitled to assault leave. I talked about the case with Robb Decker, an attorney and shareholder of Austin’s Walsh, Anderson, Gallegos, Green & Treviño, who has extensive experience in employment law in addition to having personally handled appeals to the Commissioner’s office.
“The interesting thing in this case was the Commissioner’s handling of the student’s behavior in the assault leave context,” he said. “The Commissioner found that the student did not have an intent to injure the teacher…then found that the student’s touching was ‘offensive’—which is a second type of assault under Texas law. The key evidence cited for this was that the student was disciplined by the district for his conduct, thus making it clear to the Commissioner at least that the touching was offensive. In the end, Mr. Smith’s appeal was denied because he failed to provide medical evidence to the District to support his need to recuperate from injuries sustained in the assault.”
I asked Decker how school administrators should respond when a teacher claims assault leave.
“The statute requires that whenever an employee requests assault leave, the district is to immediately place them on assault leave,” he explained, going on to stress the importance of the investigation the school should then conduct into the incident. Statements from witnesses should be gathered and a picture of the events leading up to it should be established. “Not every accident is an assault. If the investigation ends up finding that the employee is not entitled to assault leave, the District is allowed to go back and charge the employee’s leave to other leave categories, or even dock the employee’s pay if no leave is available.”
An assault need not be gruesome to qualify a victim for assault leave, Decker suggested. There must be physical injury and it must be painful, but leave is given for the time it takes to recuperate, not in proportion to the pain of the offense. “The district is entitled to request and review medical information related to the employee injuries,” said Decker. “In most circumstances, the employee will be receiving workers’ compensation benefits too, and the medical review process included under that statutory scheme often will provide the information the district needs. As Mr. Smith learned, a failure to cooperate with a reasonable district request for medical information can lead to the district denying the request for assault leave.”
Finally, Decker clarified that the assault leave rules apply to all school employees, from the lunch lady to the principal, and that it makes no difference who the assailant is, from NFL-hopeful seventh-graders to resentful colleagues.
Delve deeper into the educator’s playbook and check your blindside by reading the Texas School Administrators’ Legal Digest, where there is much more this month about Smith v. Dallas ISD.
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