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Van Deleen v. Cain, __ Fed. Appx. __, 2015 WL 6444822 (5th Cir. 2015).

Facts:  A public school teacher who pushed a student and held him against a locker subsequently had his teaching contract terminated. The teacher sued the school district, eight administrators, seven school board members, and an outside lawyer who represented the district in connection with his termination. The teacher claimed the defendants ignored his complaints of disruptive student behavior; watched him on video monitors in order to catch inappropriate conduct; altered video evidence of the incident; destroyed a tape recording of a meeting that supported his version of the events; terminated his teaching contract; caused a false “assault by contact” criminal charge to issue against him; sent a false letter to the Texas Education Agency about his “improper contact with a student”; and threatened him with arrest if he did not return unspecified school records to the district. The suit alleged First Amendment retaliation, a violation of his Fourteenth Amendment substantive due process rights, civil conspiracy, intentional infliction of emotional distress, negligence, and a violation of the Texas Whistleblower Act. The United States District Court for the Southern District of Texas dismissed the complaint for failure to state a claim and the teacher appealed.

Holding:  The Fifth Circuit Court of Appeals upheld the dismissal of the suit.  According to the appeals court, the teacher’s complaints to campus police about student misbehavior and the district’s lack of assistance with student discipline were workplace grievances that were not protected by the First Amendment.  The First Amendment protects employee speech on a matter of public concern, not purely employment-related grievances.  The Fourteenth Amendment due process claim also failed because the teacher did not allege conduct by any individual that was “so brutal, egregious, outrageous, or violative of the decencies of civilized conduct as to rise to the level required to shock the conscience,” which is the standard for substantive due process claims.

With respect to state-law claims of negligence and intentional infliction of emotional distress against the individual school administrators, the appeals court held that the claims were barred by Texas law that requires a plaintiff to elect whether they are suing the school district or the employee.  When both a district and employee are named as defendants, the district can ask for dismissal of the employee defendant.  The court held that that this election of remedies provision barred the negligence and emotional distress claims against the administrators.

In addition, the board members were entitled to professional immunity under Texas Education Code § 22.0511(a), which states: “A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee’s position of employment and that involves the exercise of judgment or discretion on the part of the employee, except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.”  In this case, the board members were acting within the scope of their duties and exercised judgment and discretion in deciding whether to entertain the teacher’s grievances or permit him to address the board about the proposed termination of his probationary employment.  Thus, professional immunity barred the suit against the board members.  The appeals court upheld the judgment in favor of the school district.

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