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TEXAS SCHOOL ADMINISTRATORS’ Publisher: Park Place Publications, L.P. Managing Editor: Jim Walsh Editor: Jennifer Childress Chief Operating Officer: Ted Siff www.legaldigest.com

A Look inside . . .

LEGAL DIGEST Volume 25, Number 1

TM

January 2009

This month we report 11 court cases, one Attorney General Opinion, three decisions from the Commissioner’s office and three special education due process decisions. Here are the highlights.

Both cases arose from the “reconstitution” of a campus due to poor student performance. Both cases were heard by certified hearing examiners. In one case the teacher prevailed; in the other case, the teacher lost. What was the common thread? In both cases, the decision of the hearing examiner was ultimately upheld by the Agency.

Powers of T.E.A.

Aggie Bonfire

Ross v. Texas Education Agency (page 10) provides a glimpse of the very rare situation in which the state agency steps in to a local school district and removes the board of trustees. The local board fought this effort with a variety of arguments, but the federal court did not find any of them persuasive. This is not the final decision in this case, but rather a preliminary ruling on the school district’s motion for temporary relief.

Litigation over the Aggie Bonfire tragedy continues, as illustrated by Bowen v. Comstock (page 19). Keep in mind that the decision we report this month is only on a very narrow legal issue—whether or not the individuals who were sued are entitled to the same “sovereign immunity” enjoyed by the state.

PIA Requests Doe v. Tarrant County District Attorneys (page 11) presents another unusual situation. Tarrant County inadvertently failed to make a timely request for an Attorney General’s opinion in response to a PIA request (Public Information Act). The general rule in such a case is that the information that was requested is presumed to be public, and therefore, would be disclosed. There are exceptions, as this case shows. Action at the Agency We give the Dawg’s Award for Most Interesting Case this month to Hall v. North East ISD, (page 13) a decision from the Commissioner of Education that addresses some of the details of the administrative appraisal process. Such cases are rare, and so this one is worth studying by those of you who have responsibilities for evaluating the performance of administrators. While the Commissioner agreed with Ms. Hall, a principal, that her appraisal was “invalid” he ordered no further relief. Even though the appraisal was flawed, the intervention plan was valid. And there was no problem with the district’s use of a “focus group” of unnamed people to gather information about the principal. The T.E.A. also issued two decisions from Dallas ISD—Strickland v. Dallas ISD (page 17) and Toussaint v. Dallas ISD (page 18). Also . . .

• 2008 Subject Matter Index, Table of Cases, and Table of Articles

Special Education Of our three special education decisions this month, we think many of you will find the Houston ISD case on page 21 the most interesting and timely. In the era of Response to Intervention we are likely to see districts accused of violating their “child find” responsibilities. That is what this case is about, and the hearing officer agreed with the parent. And more! In lieu of a lead article this month we provide our annual index of cases, issues and articles. We hope you find this helpful. And the Dawg offers dating advice to a troubled school employee, along with comments about DNA, Neanderthals and our State Board of Education. We are delighted to welcome two new members to our Editorial Advisory Board. Jan Watson is an educator-turned-lawyer in the Irving office of the Walsh, Anderson, Brown, Schulze & Aldridge law firm. And for an out-of-state perspective we welcome Sarah Orman, a graduate of Hastings Law School who has represented school districts and administrators in California. We know that both Jan and Sarah are outstanding writers and will make a great contribution to our Board. Many thanks to our retiring EAB members: Joe Hairston, of the Walsh, Anderson firm, and Cheryl Mehl from Schwartz, Eichelbaum, Wardell, Mehl and Hansen. • Law Dawg (Jim Walsh) • Legal Developments • Legal Digest-TCASE Conference on Special Education Law


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2008 SUBJECT MATTER INDEX, TABLE OF CASES, AND TABLE OF ARTICLES In order to make the Texas School Administrators’ Legal Digest more useful to administrators and attorneys as a resource for researching and answering legal questions, the following subject matter index is provided. The index covers the ten issues of the Legal Digest that were published in 2008. Following the subject matter index is an alphabetical table of the 188 cases summarized and a table of the nine feature articles published in the 2008 issues of the Digest. Each citation in the subject matter index refers to (1) the month an issue of the Digest was published and (2) the page in that issue containing a discussion of the subject.

Example: Open Meetings Act: April-10, July/Aug-2, Oct-4, Nov/Dec-9

The example indicates that the Open Meetings Act was addressed 4 times in the 2008 issues of the Digest. The July/ Aug citation is boldfaced in the index to indicate that the topic was discussed in the Digest’s feature articles, beginning on page 2 of the July/August issue and on page 4 of the October issue. In addition, the Open Meetings Act was discussed in opinions, reported on page 10 of the April issue and on page 9 of the November/December issue.

SUBJECT MATTER INDEX Administrative Hearings (see also Commissioner of Education, Teacher Contracts, and Trustees) exhaustion of administrative remedies: May-10, Sept-13 findings of fact/conclusions of law/recommendations: Jan-21, Sept-14, Sept-15 good cause: June-5, Sept-13, Sept-14, Oct-9 hearing examiner recommendations, changes to: Jan-21, Sept-14, Sept-15, Oct-9, Oct-10 Administrators (see also Employees, Teachers, and Teacher Contracts) appraisals: Oct-3, Nov/Dec-15 Texas School Administrators’ Legal Digest ISSN 0882 – 021X Published 10 times a year Individual subscription..................................................................... $140 Copyright © 2009. Reproduction of all or part of this publication requires permission from the editor. Managing Editor: Jim Walsh Editor: Jennifer Childress Chief Operating Officer: Ted Siff

Editorial Advisory Board: Mark Goulet, Chair – Walsh, Anderson, Brown, Schulze & Aldridge, P.C. Chris Gilbert – Bracewell & Giuliani, L.L.P. Sarah Orman – Fagen, Friedman & Fulfrost, L.L.P. David Thompson – UTSA Jim Raup – McGinnis, Lochridge & Kilgore, L.L.P. Jan Watson – Walsh, Anderson, Brown, Schulze & Aldridge, P.C.

Texas School Administrators’ Legal Digest welcomes your comments and contributions, though publication is not guaranteed. The views of feature article authors are their own and do not necessarily reflect the views of the DIGEST. The information provided in the DIGEST is not intended to constitute specific legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Direct correspondence and subscription inquiries to: Texas School Administrators’ Legal Digest 1601 Rio Grande, Ste. 441 • Austin, TX 78701 512-478-2113 FAX 512-495-9955 Email: info@legaldigest.com • Website: www.legaldigest.com

contract issues: Oct-9, Nov/Dec-10, Nov/Dec-11, Nov/ Dec-15 demotion: Nov/Dec-12 personal liability: Jan-18, Feb-16 remediation: June-7 retaliation: May-8, June-8, Nov/Dec-10 termination: Jan-18, Sept-13, Oct-9, Nov/Dec-10, Nov/ Dec-13 tort claims: March-2 Age Discrimination in Employment Act (ADEA): April-8, May-10, June-7, July/Aug-14, Sept-18, Oct-3, Nov/Dec-10, Nov/Dec-11 Americans with Disabilities Act (ADA): June-8, July/Aug12, Nov/Dec-16 Americans with Disabilities Act: Jan-13, June-4 Charter Schools: July/Aug-9 Commissioner of Education authority to appoint board of managers: Oct-9 damages/remedies: May-10, July/Aug-18, Sept-15, Nov/ Dec-14 dismissal of claims: Sept-13, Oct-11, Nov/Dec-14, Nov/ Dec-15 exhaustion of administrative remedies: May-10, Sept-13, Oct-5 good cause: June-5, Sept-13 jurisdiction: May-10, July/Aug-18 local record: Sept-14, Oct-6 substantial evidence: Jan-21, Oct-10 timeliness of filing: May-10, Sept-13, Oct-4 waiver of claim: Sept-13, Oct-5, Oct-12 Criminal History Reviews: Nov/Dec-2 Discrimination age: May-10, June-3, July/Aug-14, Nov/Dec-10 desegregation: April-7, Sept-10 disability: June-3 EEOC/TCHRA/OCR claims: Jan-11, Jan-16, Feb-12, Feb-13, Feb-14, March-9, March-12, April-7, April-8,


3 May-8, May-10, June-4, June-8, June-9, July/Aug-10, July/Aug-11, July/Aug-12, July/Aug-14, Sept-11, Nov/ Dec-10, Nov/Dec-11 hostile work environment: April-7 race/color/national origin: Jan-11, Feb-12, March-9, March-12, April-7, May-10, June-3, June-4, June-11, July/Aug-10, July/Aug-13, July/Aug-14, July/Aug-22, Sept-11, Sept-12, Sept-16, Nov/Dec-11 religion: May-12, June-4, Sept-4, Sept-7 sex/gender/sexual harassment: May-8, June-4, June-11, June-14, July/Aug-10, July/Aug-11, July/Aug-12, Oct-11, Nov/Dec-12 Employees (see also Administrators, Teachers, and Teacher Contracts) application process: June-3 at-will: April-7, July/Aug-10 breach of contract: Jan-16, March-12, May-10 computer use: Sept-16 conspiracy: Jan-16, July/Aug-10, Sept-17, Oct-21 criminal charges: July/Aug-10, Sept-14, Nov/Dec-2 criminal history information: Nov/Dec-2 defamation: May-11, Sept-17, Sept-22, Oct-10, Oct-21, Nov/Dec-10 discrimination (see Discrimination) due process: Jan-12, Jan-13, Jan-16, April-7, May-8, June13, Sept-16, Oct-10, Oct-12, Nov/Dec-11, Nov/Dec-12, Nov/Dec-13 employment interviews: June-3 equal protection: Jan-12, Jan-13, July/Aug-9, July/Aug-10, July/Aug-11, Sept-11, Oct-11 harassment: Feb-14, July/Aug-11, Oct-3 hiring: June-2 intentional infliction of emotional distress: May-11, Sept11, Sept-17, Oct-21 interference with business relationship: March-9, Sept-17 leave of absence: June-11, Sept-18, Nov/Dec-13 liability/immunity (see Liability/Immunity) posting job vacancies: June-2 promote, failure to: Feb-12, Feb-13, June-11, June-12 remediation: Oct-13 retaliation: Jan-11, Jan-13, Jan-15, Jan-16, Feb-14, March-9, April-7, May-7, June-8, June-12, June-13, July/Aug-11, July/Aug-12, July/Aug-15, July/Aug-16, July/Aug-18, Sept-11, Sept-12, Nov/Dec-10, Nov/Dec-12 right of privacy: March-10, Oct-13, Oct-14 right to educate child in private school: Jan-13, Jan-14 sexual harassment of: July/Aug-11, Oct-3 sex offender: April-5 sexual contact with student: Feb-16 termination: Jan-18, April-7, April-8, May-7, June-2, June12, June-13, June-14, June-15, July/Aug-18, Sept-11, Sept-12, Sept-17, Oct-9, Nov/Dec-10, Nov/Dec-13 workplace searches: Oct-13 Equal Access Act: Feb-3 Equal Education Opportunity Act (EEOA): Oct-18 Fair Labor Standards Act: July/Aug-15 False Claims Act: Feb-14, March-10, June-11, Oct-20 Family and Medical Leave Act (FMLA): June-11, June-15 Family Educational Rights and Privacy Act (FERPA): May-3, May-16 First Amendment Establishment Clause: Feb-3, Feb-10, May-7, May-8, Sept-4

forum analysis: Feb-5 freedom of speech: Jan-10, Jan-13, Jan-16, Feb-3, Feb-11, March-7, April-7, May-7, June-12, June-13, July/Aug3, Sept-2, Sept-4, Sept-8, Sept-16, Nov/Dec-10, Nov/ Dec-11, Nov/Dec-13 freedom of assembly: Jan-16, Feb-11, Sept-4 freedom of association: July/Aug-2 retaliation: Jan-13, Jan-15, Jan-16, Feb-11, May-7, June-12, Sept-16, Sept-18 Fourteenth Amendment: Jan-16 equal protection: Feb-11, July/Aug-10, July/Aug-22, Sept11, Oct-11 liberty interests: Jan-16, April-7, June-13, Nov/Dec-13 property interests: Jan-16, April-7, May-8, May-9, Sept-16, Oct-11, Oct-12, Nov/Dec-10, Nov/Dec-13 substantive due process right to bodily integrity: June-13 Fourth Amendment: Oct-13 Grievances exhaustion of administrative remedies: May-10, July/Aug16, Sept-13 failure to provide hearing: Oct-4 generally: Oct-2 harassment: Oct-3 record: Oct-6 representation: Oct-5 retaliation: April-7, June-8, July/Aug-18 timeliness: Sept-13, Oct-4, Oct-5 Immunity from suit (see Liability/Immunity) Individuals with Disabilities Education Act (IDEA) (see Special Education) Judicial Review damages/remedies/attorney’s fees: Jan-14, Jan-18, Jan-20, May-8, May-10, May-12 dismissal of claim: Jan-11, Jan-13, Jan-19, Feb-10, Feb12, Feb-14, Feb-16, March-7, April-7, April-8, May-8, May-10, June-12, June-13, June-14, June-14, June-16, July/Aug-13, July/Aug-16, July/Aug-17, Sept-12, Sept16, Sept-17, Oct-11, Oct-21, Nov/Dec-10, Nov/Dec-11, Nov/Dec-15, Nov/Dec-17 evidence, admissibility: Feb-16, Sept-15 exhaustion of administrative remedies: Jan-19, March-12, May-10, July/Aug-16, Sept-19 jurisdiction: Jan-19, Feb-14, Feb-19, May-10, May-11, June-13, June-17, July/Aug-18, Sept-19, Sept-20, Oct-14, Oct-15, Nov/Dec-15 mootness: May-7 non-attorney representation: June-14 redundant claim: April-8 ripeness: Nov/Dec-15 settlement agreement: May-8, Sept-18 standing: Jan-10, May-7, July/Aug-18, Sept-18, Oct-9 statute of limitations: March-9, Nov/Dec-11 temporary restraining order/injunction: Jan-10, Jan-19, Jan20, April-11, May-4, July/Aug-3, July/Aug-22, Sept-4, Sept-7, Sept-11, Sept-20, Oct-18

waiver of claim: May-11

Liability/immunity (see also Section 1983 and Tort Claims Act) federal qualified immunity of school officials/employees: Jan-12, Jan-16, Feb-16, May-7, June-12, June-13, Sept16, Sept-18, Oct-11 immunity from disciplinary proceedings for use of force:


4 March-4, Nov/Dec-14, Nov/Dec-15 sovereign immunity of school districts/universities: Jan-12, Jan-18, Jan-20, March-11, April-9, May-11, June-16, July/Aug-5, July/Aug-17, Oct-14 state law official immunity for school officials/employees: March-2, Sept-17, Oct-11 state statutory immunity for implementing emergency discipline: March-3, Nov/ Dec-14 professional employees acting in the scope of duties: March-2 reporting suspected child abuse: Feb-16 tort liability (see Tort Claims Act) waiver of immunity: Jan-18, May-11, June-15 No Child Left Behind Act (NCLB): March-10 Open Meetings Act: April-10, July/Aug-2, Oct-4, Nov/ Dec-9 Parents access to campus: Feb-12, May-5, July/Aug-2 criminal history information: Nov/Dec-2, Nov/Dec-5 custody issues: Jan-20, May-2 joint managing conservator: May-3 managing conservator: May-3 parental rights: Jan-14, Jan-20, Feb-12, March-11, May-2, July/Aug-2, July/Aug-3, July/Aug-17, Nov/Dec-5 possessory conservator: May-3 sex offenders: April-4 sole managing conservator: May-3 suit affecting the parent-child relationship: May-4 special education matters (see Special Education) transfer requests: Oct-16 Paul D. Coverdell Teacher Protection Act: March-3, March-5 Performance Based Monitoring Analysis System (PBMAS): Oct-18 Principals (see Administrators) Property Taxes (see Taxation) Public Information Act: Jan-19, Feb-14, March-10, Sept-13, Nov/Dec-6, Nov/Dec-12 Religion: Feb-2, Feb-10, May-7, May-12, July/Aug-17, Sept4, Sept-7, Oct-19 Religious Viewpoints Antidiscrimination Act (RVAA or “Schoolchildren’s Religious Liberties Act”): Feb-2, May7, May-12, Oct-19 School Boards (see Trustees) School Buildings and Property access to campus/facilities: Feb-12, May-5, July/Aug-2 construction contracts: Jan-18, March-9, April-11, May-11, May-12 construction contract dispute: Jan-18, March-9, April-11, May-11, May-12 finance/permanent school fund: June-17 ownership dispute: March-11 property taxes (see Taxation) School Districts (see also School Buildings and Property) access to campus/facilities: Feb-12, May-5, July/Aug-2 bond elections: April-11, June-14, June-16, Sept-10 boundary dispute: March-11 breach of contract claim: Jan-16, Jan-18, March-9, March-11, May-10, May-11, May-12, June-15, Sept-18, Oct-9 contractors: April-5, Nov/Dec-2, Nov/Dec-5 contracts: March-13, April-11, May-11, Sept-18, Oct-9

corporal punishment: Jan-14, March-2, July/Aug-5 curriculum: Oct-19 desegregation: April-7, Sept-10 detachment and annexation: March-11 discrimination (see Discrimination) finance system: Nov/Dec-21 grade point averages: Oct-20 impact fees: July/Aug-8 insurance: March-11 investments: July/Aug-8 peace officers: Feb-16, April-7, Sept-11 policies: May-7, July/Aug-10, Oct-4, Oct-19 prayer/religion at school: Feb-2, Feb-10, May-7, May-12, Sept-4, Sept-7, Oct-19 property taxes (see Taxation) public funds, use of: April-11, Nov/Dec-21 safety issues: July/Aug-2, Sept-4, Sept-7 security audits: July/Aug-2, July/Aug-6 shared services arrangements: Nov/Dec-2 sovereign immunity (see Liability/Immunity) student discipline: Jan-10, Jan-14, Sept-5 student transfers: Sept-10 taxes: Nov/Dec-21, Nov/Dec-22 uniform policy/dress code: Sept-2, Sept-6, Sept-8 volunteers: Nov/Dec-2, Nov/Dec-5 weapons: Sept-7 Section 501 of the Rehabilitation Act: July/Aug-12 Section 504 of the Rehabilitation Act of 1973: May-13, May-15, July/Aug-12, Oct-3, Nov/Dec-16 Section 1981: Feb-10, Feb-12, March-9, July/Aug-13 Section 1983: clearly established right: Jan-13, Jan-17, Feb-13, May-7, June-12, Sept-5 custom/policy: Jan-16, Feb-10, Feb-12, March-7 deliberate indifference: Feb-16, June-13, July/Aug-5, July/ Aug-6 final policymaking authority: Feb-10, Sept-16 objective reasonableness: Jan-12, Feb-13, May-7, June-13 qualified immunity (see Liability/Immunity) “state-created danger”: June-13 supervisory liability: Jan-16, Feb-16, May-7, May-11, June-12, July/Aug-11 Section 1985: Jan-16, July/Aug-10 Sex Offenders: April-2 Special Education ADD/ADHD: Jan-17, Feb-15, Feb-20, Feb-21, March-13, March-14, March-15, April-8, April-11, April-14, April-15, May-13, May-15, June-19, July/Aug-19, Sept-19, Oct-17 absences: Oct-18 administrative decision: May-9 Admission, Review, Dismissal(ARD) committees/meetings notice: July/Aug-19 participation: May-14, July/Aug-19 timeliness/scheduling: July/Aug-19 transition ARD: June-19 aides/paraprofessional support: April-12, July/Aug-20 assault on student: March-13 assault on teacher: March-13, April-14, Oct-16 assessment/evaluation: appropriateness/validity: Jan-15, Jan-22, Jan-23, Feb-19, March-14, April-13, April-15, May-14,


5 June-18, June-19, Sept-19, Nov/Dec-17, Nov/ Dec-19, Nov/Dec-20 consent/cooperation: Jan-13, Feb-20, March-13, April-13, Nov/Dec-19, Nov/Dec-20 full and individual evaluation (FIE): Jan-14, Jan-17, Feb-19, Feb-20, March-13, March-14, April-13, May-13, May-14, May-15, July/Aug-20, Sept19, Sept-20, Oct-17 independent educational evaluation (IEE): Feb-15, Feb-19, March-14, April-15, May-15, June-19, Oct-16, Oct-17, Nov/Dec-17, Nov/Dec-20, Nov/ Dec-21 need for: Feb-20, March-13, March-14, April-13, April-14, April-15, May-14, Sept-19, Oct-16 timeliness: Jan-15, March-14, April-8, Oct-16, Oct-17 triennial review/review of existing evaluation data (REED): March-13, March-14, April-12, April-15 assistive technology device: Oct-17, Oct-18 behavioral intervention plan (BIP): Jan-23, Feb-21, March-13, March-15, April-14, May-14, Sept-21, Sept-22, Oct-15, Oct-17, Nov/Dec-18 bullying: July/Aug-5, Oct-16, Oct-17 child find requirements: Jan-14, April-15, Sept-19 compensatory education/services: March-15, April-13, May-9, July/Aug-19, Sept-21, Oct-17 continuum of services: Oct-17 contract service providers: Jan-23, July/Aug-20 criminal conduct: April-14, May-13, Oct-15, Oct-18 danger/threat to others: May-14, Oct-16 death: March-7 delay in providing services: April-8 disability/disorder: apraxia: Jan-14 Asperger’s Disorder: Jan-14, Jan-17, April-12, May-13, May-15 asthma: May-15 auditory impairment: May-13, June-18, Nov/Dec17 autism: Jan-13, Jan-14, Jan-15, Feb-20, March-13, March-14, April-11, April-14, May-15, June-19, July/Aug-20, Sept-21, Oct-15 bipolar disorder: Jan-17, March-13, March-14, Oct-16 depressive disorder: Jan-17, May-13 Down’s Syndrome: June-18 dyslexia: Oct-17 emotional disturbance: Jan-17, Jan-22, March-7, March-13, March-14, April-13, April-15, May-14, May-15, Sept-21, Oct-16, Oct-18, Nov/Dec-20 encephalopathy: May-15 Irlen Syndrome: April-15 learning disability: Jan-22, Feb-21, March-8, April-13, April-14, May-13, Sept-21, Oct-17, Nov/Dec-18 mental retardation: March-7, Sept-22, Nov/Dec-17 obsessive compulsive disorder: Oct-16 oppositional defiance disorder: Jan-17, Feb-15, Oct-17 other health impaired: Jan-15, Jan-22, Feb-20,

March-14, April-13, April-14, April-15, Oct-16, Oct-17, Oct-18, Nov/Dec-17, Nov/Dec-19 pervasive developmental disorder: Jan-14, Feb-19, March-13, Sept-20, Oct-15 psychotic disorder: Sept-22 schizophrenia: Sept-22 sensory integration dysfunction: Jan-14 speech impairment: Jan-14, Feb-19, Feb-20, March-14, April-13, April-14, April-15, June-19, July/Aug-20, Sept-21, Oct-15, Nov/Dec-17, Nov/ Dec-19 Tourette’s Syndrome: May-15 Williams’ Syndrome: June-18 discipline: Jan-23, Feb-21, March-13, March-15, April-4, April-14, May-13, July/Aug-4, Sept-21, Oct-16 dismissal from: Jan-23, Feb-19 drugs/weapons: May-13, May-14, Sept-21 educational benefit/progress: Jan-17, March-14, March-15, April-15, May-9, June-19, Oct-15, Oct-16, Oct-18, Nov/ Dec-19, Nov/Dec-21 extended school year services (ESY): March-14, April-14, May-9, Oct-17, Nov/Dec-20 free appropriate public education (FAPE), denial of: May13, May-14, June-15, Sept-20, Oct-16 functional behavioral assessment: March-13, March-15, April-13, April-15, May-14, May-15, Nov/Dec-18 hearing officer/judicial review: additional evidence: April-8 attorney fees: Feb-15, April-8, June-15, Sept-20, Oct-14 exhaustion of administrative remedies: Sept-19 hearing officer misconduct: Jan-17 jurisdiction: March-13, Nov/Dec-17 procedural violations: Jan-17, March-8, March-14, May-15, July/Aug-19 statute of limitations: April-14, Sept-20 identification/eligibility: Jan-14, Jan-15, April-8, Sept-19, Nov/Dec-18 individualized education plan (IEP) appropriateness: Jan-13, Jan-17, Jan-22, Jan-23, Feb-21, March-8, March-9, April-12, May-9, May-14, June-18, July/Aug-20, Sept-21, Oct-15, Oct-17, Oct-18, Nov/Dec-17, Nov/Dec-20 development of/need for: April-8, May-14, May-15, Sept-21, Nov/Dec-20 goals and objectives: Jan-22, March-16, April-12, April-13, May-15, June-18, Sept-21 implementation of: Jan-22, March-16, May-9, May15, July/Aug-20, Sept-21, Oct-17, Oct-18, Nov/ Dec-19, Nov/Dec-20 injury to student: March-7 least restrictive environment (LRE) (see placement) manifestation determination review: Jan-23, May-13, Nov/ Dec-19 mistreatment: Jan-22 need for services: Jan-17, Feb-15, April-8, April-15, May-9, May-15, June-18 one-on-one instruction: April-12, April-14, May-9, June-18 parents (see also ARD committees/meetings) consent: Jan-13, Feb-20, March-13, April-13, Nov/


6 Dec-19, Nov/Dec-20 notice: April-8, July/Aug-19, Sept-19, Oct-17, Nov/ Dec-20 participation/cooperation/communication: Jan-13, Jan22, Feb-20, March-14, April-12, April-13, May-14, May-15, June-18, July/Aug-19, Sept-19, Sept-21, Oct-17, Nov/Dec-19, Nov/Dec-20 training: Oct-16 placement change in: March-15, May-15, July/Aug-4, July/ Aug-20, Sept-21, Oct-16, Nov/Dec-18, Nov/Dec-19 disciplinary: March-13, March-15, May-13, July/ Aug-4, Sept-21, Nov/Dec-18, Nov/Dec-19 homebound/home school: Jan-13, April-14, May-15 least restrictive environment (LRE): Jan-22, March-15, March-16, April-12, April-13, April-15, May-9, May-14, June-18, June-19, July/Aug-20, Sept-22, Oct-17 private placement/services: Jan-22, March-8, April-12, May-9, May-13, May-14, May-15, June-19, Oct15, Oct-16 regular education: Jan-14, Jan-15, March-15, April-12, May-9, June-18, June-19, July/Aug-20, Sept-20, Oct-15, Oct-16 residential: April-11, April-12, May-13, May-14, May-15 stay put rule: July/Aug-4 pre-school/early childhood: Jan-14, Feb-19, May-9, June18, June-19, Sept-20 qualifications of teacher/service providers: Jan-22, April-12, May-15 referral: Sept-19, Sept-20 reimbursement: March-8, April-11, April-12, May-9, May14, June-15, June-18, June-19, Oct-15, Oct-16 response to intervention (RtI): safety issues: July/Aug-4, Sept-21 Section 504 (see Section 504) sexual assault/abuse: July/Aug-5 shortened school day: May-9 sign language: June-18 transition: April-12, April-14, Oct-18 transportation: May-14, June-18 State Board of Education (SBOE): June-17 State Board for Educator Certification (SBEC): June-5, June-17, Nov/Dec-2 Students absences: May-13, July/Aug-21 alcohol: March-7 alternative education program: March-7, April-3, July/ Aug-3, July/Aug-21, Nov/Dec-16, Nov/Dec-17 anti-bullying statutes: July/Aug-5 assault by private third-party: assault on teacher: June-13 athletics: Jan-20, Feb-10 bullying: July/Aug-5 clothing: Feb-12, Sept-2 corporal punishment: Jan-14, March-2, July/Aug-5 criminal charges: March-12, April-3, April-10, June-16, July/Aug-21, Nov/Dec-16 death: March-7 delinquent conduct: March-12, April-10, June-16, July/ Aug-21

disabilities (see Special Education and Section 504) discrimination: Jan-15, Jan-18, Feb-10, Sept-16, Oct-18 discipline: Jan-10, Jan-14, Jan-20, March-7, April-10, July/ Aug-3, Sept-5, Nov/Dec-16, Nov/Dec-17 drugs: Sept-3, Sept-5 due process: Jan-14, Jan-20, March-7, July/Aug-17, July/ Aug-21, Sept-16, Nov/Dec-16 elections on religion: May-7, May-8 equal protection: Jan-14, July/Aug-17, Sept-11, Nov/Dec-16 excessive force against: March-2 expression: Sept-2 expulsion: Nov/Dec-16 extracurricular activities: Jan-20, March-16 freedom of speech (see First Amendment) grade point averages: Oct-20 injury to: April-9, Nov/Dec-14, Nov/Dec-15 in-school suspension: April-10 Internet use: Sept-3, Oct-21 Limited English Proficient(LEP): Oct-18 moment of silence: Feb-10 protests: Feb-11, June-13, Sept-2, Sept-4 racism: Sept-7 records: May-5 right to attend graduation: July/Aug-21 right to bodily integrity: Feb-16 right to public education: March-7, Nov/Dec-16 segregation: Jan-15, Jan-18 sex offender: April-3 sexual assault/harassment: Feb-16, April-4, July/Aug-5, Nov/Dec-2 speech: Sept-2 threat to school: Jan-10 transfers: March-7, Sept-10, Oct-16 weapons: Sept-21 Superintendents (see Administrators) Teacher Contracts (see also Administrators, Teachers, and Administrative Hearings) breach: Jan-16, May-10, Nov/Dec-14 Chapter 21 contract: May-10, June-5 constructive discharge: Feb-13 nonrenewal: Jan-19, Jan-21, June-2, June-5, June-6, July/ Aug-13, Sept-14, Oct-3, Oct-11, Oct-12, Oct-13, Nov/ Dec-13, Nov/Dec-14 notice of contract action: Jan-18, Jan-19, June-6, Sept-14, Sept-15, Nov/Dec-14 probationary: Jan-15, June-5, Oct-3 property interests: Jan-16, May-8, May-9 reassignment: May-8 resignation: Jan-19, June-5 salary/compensation/stipend: May-8, May-10, Oct-3, Nov/ Dec-10, Nov/Dec-11 termination: Jan-18, Jan-19, Jan-21, April-7, May-10, June5, June-6, Oct-3, Oct-9, Nov/Dec-11, Nov/Dec-15 Teachers (see also Administrators, Employees, and Teacher Contracts) absences: Nov/Dec-13, Nov/Dec-14 appraisal: Oct-3, Oct-12, Oct-13 assault on: June-13, Sept-15 certification issues: June-17 compensation: May-10, Nov/Dec-10, Nov/Dec-12 conspiracy claim: Jan-16, July/Aug-10


7 corporal punishment: Jan-14, March-2, July/Aug-5 criminal conduct: June-17, July/Aug-10, Sept-14, Oct-13, Nov/Dec-2 criminal history information: Nov/Dec-2 grievances (see Grievances) growth/intervention plan: Jan-22, Oct-12 injury: Sept-15 intentional infliction of emotional distress: May-11 leave of absence: June-11, Sept-18 liability/immunity (see Liability/Immunity and Section 1983) privileged use of force: March-3 Professional Development and Appraisal System (PDAS): Oct-13 remediation: June-7 resignation: June-7 retaliation: Jan-15, June-8, June-14, Sept-16, Nov/Dec-11, Nov/Dec-12 retirement: June-6, June-11, Sept-18, Nov/Dec-10 sexual assault/harassment of child: Feb-16, July/Aug-5 suspension: Jan-21, Sept-14 teaching permit/emergency permit: termination: Jan-18, Jan-19, Jan-21, April-7, May-10, June-3, June-5, June-6, July/Aug-18, Sept-16, Oct-3, Nov/Dec-10 use of force against student: March-2 Texas Commission on Human Rights Act (TCHRA): May11, June-5 Texas Constitution: June-17, July/Aug-18, Oct-2, Oct-4, Nov/Dec-21 Texas Department of Protective and Regulatory Services: May-16 Texas Education Agency: Sept-10, Nov/Dec-5 Texas Expedited Declaratory Judgment Act (EDJA): June-

14, June-16 Title VII of the Civil Rights Act of 1964: Jan-11, Jan-13, Feb-13, March-9, March-12, April-7, May-8, May-9, May-10, June-7, June-12, June-14, July/Aug-10, July/Aug-11, July/ Aug-13, Sept-18, Oct-3, Nov/Dec-10, Nov/Dec-11, Nov/ Dec-12 Title IX of the Education Amendments of 1972: Feb-10, Feb-16 , Feb-17, June-9, Oct-3 Tort Claims Act: March-2, April-9, May-11, July/Aug-5, July/Aug-17 Trustees (see also Administrative Hearings and Open Meetings Act) action on teacher contracts/hearing examiner recommendations: Jan-19, Jan-21, Sept-14, Oct-9, Oct-12, Oct-13 board minutes: Sept-14 elections: April-9 final policymaking authority: Sept-16 Level III grievance hearings: Oct-4 liability/immunity (see Liability/Immunity and Section 1983) Uniformed Services Employment and Reemployment Rights Act (USERRA): June-4, Oct-10 Universities/Jr. Colleges admissions: July/Aug-22 employees (see Employees) retaliation against employees: Jan-13 sovereign immunity (see Liability/Immunity) termination: Jan-12, Sept-17 University Interscholastic League: Jan-20, July/Aug-17 Wetterling Act: April-2 Workers’ Compensation Act: Feb-18, June-4, July/Aug-16, Sept-15 Whistleblower Act: Feb-17, Feb-19, April-9, June-9 Whistleblower Protection Act of 1989: June-14

2008 TABLE OF CASES (MONTH OF PUBLICATION) Abilene ISD v. Marks, (Sept.) Alamo Heights v. Student, (Mar.) Alief ISD v. Student, (Feb.) Alief ISD v. Student, (Nov./Dec.) Amarillo ISD v. Student, (June) Amie v. El Paso ISD, (Jan.) Anderson v. Sch. Bd. of Madison County, (April) Anderson v. Tyler ISD, (Oct.) Atkinson v. Mercedes ISD, (Sept.) Barrow v. Greenville ISD, (Jan.) Bartz v. Mitchel Center, (June) Berlin v. North East ISD, (Sept.) Bouknight v. Houston ISD, (Mar.) Boyd v. Dallas ISD, (Jan.) Brazosport ISD v. Student, (Mar.) Brock ISD v. Briones, (May) Brokaw v. Dallas ISD, (Nov./Dec.) Carroll ISD v. Northwest ISD, (Mar.) C.H. v. Northwest ISD, (Oct.) Charles v. Grief, (May) Charleston v. Waller ISD, (April) City of Galveston v. Saint-Paul, (April) Cornerstone Christian Schools v. UIL, (July/ Aug.) Croft v. Governor of the State of Texas, (Feb.)

Crook v. El Paso ISD, (July/Aug.) Crouch v. Trinque, (Sept.) Crummey v. Klein ISD, (Nov./Dec.) Davis v. Dallas County Schools, (July/Aug.) D.B. v. Houston ISD, (Jan.) Deocariza v. Central Texas College District, (Sept.) Does 1-7 v. Round Rock ISD, (May) Draker v. Schreiber, (Oct.) Duran v. Fort Worth ISD, (April) El Paso ISD v. Richard R., (April) El Paso ISD v. Student, (Feb.) Engquist v. Oregon Dept. of Agriculture, (July/ Aug.) Fisher v. State of Texas, (July/Aug.) Fullen v. Galveston ISD, (Mar.) Fullen v. Galveston ISD, (Sept.) Fried v. West ISD, (June) GA-0596, (Mar.) GA-0607, (May) GA-0609, (May) GA-0614, (June) GA-0617, (June) GA-0629 (July/Aug.) GA-0633 (July/Aug.) GA-0637 (July/Aug.) GA-0655 (Oct.)

GA-0657 (Oct.) GA-0664 (Nov./Dec.) GA-0665 (Nov./Dec.) GA-0668 (Nov./Dec.) Gallien v. Goose Creek CISD, (Sept.) Galveston ISD v. Jaco, (Feb.) Garcia v. Montenegro, (June) Garzes v. Lopez, (Sept.) G.B. v. Humble ISD, (Sept.) Gillaspy v. Dallas ISD, (July/Aug.) Givens v. North Harris Montgomery Community College District, (July/Aug.) Gonzalez v. Villareal, (April) Green v. Fort Bend ISD, (Feb.) Green v. Texas A&M University System, (May) Grey v. Dallas ISD, (April) Guerra v. Santa Rosa ISD, (Jan.) Hagan v. Echostar Satellite, L.L.C., (July/Aug.) Harrison v. Carroll ISD, (Feb.) Hatten v. University Interscholastic League, (Jan.) Haynes v. Longview ISD, (Feb.) Herrera v. Eagle Pass ISD, (July/Aug.) Houston ISD v. V.P., (Feb.) Howard v. Walnut Bend ISD, (Nov./Dec.) Huntsville ISD v. Briggs, (July/Aug.)


8 Ingram v. White Settlement ISD, (June) In the Matter of H.A.G., (July/Aug.) In the Matter of J.T., (April) In the Matter of T.F., (Mar.) In the Matter of V.V.C., (June) Jackson v. Waller ISD, (June) Jackson v. Waller ISD, (Sept.) J.M. v. Lake Travis ISD, (Jan.) Johnson v. Kenedy ISD, (Nov./Dec.) Judson ISD v. ABC/Associated Benefit Consultants, Inc., (Mar.) Keller ISD v. Student, (Feb.) Kelley v. Humble ISD, (April) Kerrville ISD v. Botkin, (April) Khan v. Fort Bend ISD, (July/Aug.) Klein ISD v. Student, (April) Lago Vista v. S.F., (Mar.) Lake Travis ISD v. Lovelace, (Jan.) Lamesa ISD v. Booe, (Jan.) Lamesa ISD v. Booe, (May) Langley v. Monroe County School District, (Mar.) Lewis v. Igwe, (Mar.) Lyman v. Blooming Grove ISD, (Oct.) Lyons v. North East ISD, (June) Madrid v. Anthony, (Feb.) Marc V. v. North East ISD, (Jan.) Matthews v. Scott, (Oct.) Mayeaux v. Clear Creek ISD, (July/Aug.) McIntosh v. Partridge, (Oct.) McKay v. Dallas ISD, (Jan.) Mesquite ISD v. Student, (April) Meyers v. La Porte ISD, (Feb.) Mission CISD v. Garcia, (May) Modica v. Humphrey, (Jan.) Montgomery County v. Park, (Feb.) Moore v. Dallas ISD, (June) Moore v. Duncanville ISD, (Nov./Dec.) M.P. v. North East ISD, (Feb.) Murungi v. Xavier University of Louisiana, (June) Nairn v. Killeen ISD, (Oct.) Narmah v. Waller ISD, (June) N.B. v. San Antonio ISD, (Feb.) Nixon v. City of Houston, (Mar.)

Ollie v. Plano ISD, (May) Ollie v. Plano ISD, (Sept.) Ollie v. Plano ISD, (Nov./Dec.) O’Neal v. Ector County ISD, (May) Palestine Herald-Press Co. v. Zimmer, (Sept.) Papania-Jones v. Dupree, (Sept.) Perez v. Araiza, (Feb.) Pinkerton v. Spellings, (July/Aug.) Ponce v. Socorro ISD, (Jan.) Port Arthur ISD v. Mathews, (Mar.) R.H. v. Plano ISD, (May) Richardson ISD v. Michael Z., (June) Rivera v. Jones, (Nov./Dec.) R.R. v. El Paso ISD, (Sept.) Saddler v. Quitman County School District, (July/Aug.) Samnorwood ISD v. TEA, (Sept.) San Diego ISD v. Vantage Systems Design, Inc., (Oct.) Santamaria v. Dallas ISD, (Jan.) Scott v. Presidio ISD, (July/Aug.) Scott v. Presidio ISD, (Oct.) Senu-Oke v. Jackson State University, (Sept.) Serafin v. School of Excellence in Education, (Jan.) Singleton v. Graford ISD, (Nov./Dec.) Somerset ISD v. Casias, (June) Stotter v. University of Texas at San Antonio, (Jan.) Student v. Alamo Heights ISD, (Mar.) Student v Alief ISD, (Jan.) Student v. Austin ISD, (May) Student v. Bay Area Charter School, (July/ Aug.) Student v. Carrollton-Farmers Branch ISD, (Nov./Dec.) Student v. China Spring ISD, (Oct.) Student v. Coppell ISD, (Oct.) Student v. Cypress-Fairbanks ISD, (Oct.) Student v. Dallas ISD, (May) Student v. El Paso ISD, (Sept.) Student v. El Paso ISD, (Nov./Dec.) Student v. Flour Bluff ISD, (Sept.) Student v. Harris County Dept. of Educ., (Jan.)

Student v. Harris County Dept. of Educ, (July/ Aug.) Student v. Houston ISD, (Mar.) Student v. Houston ISD, (April) Student v. Houston ISD, (Nov./Dec.) Student v. Humble ISD, (July/Aug.) Student v. Hutto ISD, (May) Student v. Leander ISD, (Feb.) Student v. Lewisville ISD, (Mar.) Student v. Mansfield ISD, (June) Student v. McMullen County ISD, (April) Student v. Mesquite ISD, (Oct.) Student v. North East ISD, (April) Student v. Northside ISD, (Jan.) Student v. Northside ISD, (June) Student v. Port Arthur ISD, (Mar.) Student v. Spring ISD, (April) Student v. Vidor ISD, (April) Texas A & M University v. Bading, (Jan.) Texas Comptroller of Public Accounts v. Attorney General of Texas, (Mar.) Thomas v. Norris, (June) Tillis v. Dallas ISD, (Jan.) Underwriters Group, Inc. v. Clear Creek ISD, (Mar.) United States of America v. Deloitte & Touche, (Oct.) United States of America v. Hudson ISD, (Feb.) United States of America v. The State of Texas, (Oct.) Van Myers v. Dallas ISD, Dkt(July/Aug.) Van Myers v. Ennis ISD, Dkt(July/Aug.) Verrett v. Dallas ISD, (Nov./Dec.) Vicari v. Ysleta Independent School District, (May) Vicari v. Ysleta Independent School District, (Nov./Dec.) Wamsley v. State of Texas, (Oct.) Watkins v. Dallas ISD, (Sept.) Weathers v. School Board of Lafayette Parish, (Sept.) Zeifman v. Michels, (Jan.) Zepeda v. Boerne ISD, (Nov./Dec.)

2008 TABLE OF ARTICLES FEB

David P. Thompson

MARCH Jim Raup

APRIL Dorcas Green

MAY Christine Badillo

JUNE

JULY/AUG SEPT OCT

NOV/DEC

Mark C. Goulet

Jim Walsh Sarah S. Orman

Joe Hairston Karla Schultz

Understanding the Challenges of the Religious Viewpoints Antidiscrimination Act Spare the Rod and Spoil the Child: The Use of Physical Force by Public School Employees Striking the Balance: Protecting Children, Preserving Rights: A Guide for Administrators in Restricting Child Sex Offender Access to School Campuses Can’t We All Just Get Along? An Overview of Child Custody Issues Frequently Confronted by School Administrators Employment Beginnings and Endings: Proceed with Caution The Challenge of School Safety Student Clothing that Sends A Message Employee Grievances in Texas Public Education: “Good Grief, School Board!” Crime and Punishment: Employee Criminal History Information


9

LAW DAWG by Jim Walsh Attorney at Law Walsh, Anderson, Brown, Schulze & Aldridge, P.C.

DEAR DAWG: I’m the director of special education here, and I’m wondering if it is OK for me to go out on a date with the parent of one of the kids in our program. I never thought I’d be dealing with a question like that, but it came up yesterday. I was having a conference with one of the parents about his child, who is doing just fine in our program. The dad is happy with us. In fact, he’s very happy and was effusive in his praise for the program, the dedication of the teachers and what he called “the inspired leadership they are getting from your office.” Well, of course I was both pleased and flattered. Then he stunned me—he asked me out to dinner next week. Gulp. I’m afraid I stammered and shuffled and didn’t respond very directly. I managed to get him out of my office pretty quickly, but I have to admit….I still left the question dangling. I didn’t answer him. What should I do? Not only is he the parent of one of our kids, he’s also newly divorced, and so am I. It’s just too soon, know what I mean? So what should I do? Will there be legal or ethical problems if I say yes? If I say no? I really prefer to say no, but how should I do that? I’M THE DIRECTOR BUT I DON’T KNOW HOW TO DIRECT THIS PROBLEM. DEAR I’M THE DIRECTOR: There is no state or federal law that prohibits a school employee from dating the parent of a child in the school. So unless your district has some policy about this, we’d say you can go ahead and enjoy dinner with the guy. But you indicate that you prefer to decline the invitation, and of course, you can also do that. However, when a high ranking special education official says “no” to the parent of a child with a disability, the argument can be made that “prior written notice” is required. When you refuse to evaluate a student, or refuse to change placement, you have to give “prior written notice.” Arguably, the same requirement applies here. So if you decide to say no, we encourage you to get with your school district attorney and craft a legally defensible “prior written notice.” We would suggest that it should look something like this: Description of the action that I am refusing to take: I am refusing to go out on a date with you--specifically, a date for dinner. Explanation of why I am refusing to take this action: You just got divorced. I just got divorced. This is way too soon. I’m not ready for this. I know you are lonely and so am I, but there are other interventions available to each of us that we should try before attempting a potentially disastrous tete a tete.

Description of each evaluation, procedure, assessment, record, or report I used in deciding to turn you down. My horoscope. Recommendations from my hairdresser who said “are you CRAZY?” Recommendation from my little sister who is an expert on interpersonal relationships having been married four times and divorced three. Stuff I remember from an Oprah show last fall. Description of any other choices that I considered and why they were rejected. I thought about suggesting something less complicated, like coffee. Rejected this because that’s just the first step down a slippery slope. I thought about telling you that school policy would prohibit this, but was afraid you would appeal the decision to the superintendent. I thought about scaring you off by telling you that I have a fatal illness and will die in six months, but did not want to garner unwarranted sympathy. I thought about chucking this job, running away and waiting on tables in upstate New York. Still thinking about that one. Description of other reasons I refused to go out with you. Truth is, even if I was ready…you wouldn’t be the guy. Resources the parent may contact for help in understanding male-female relationships. We normally suggest that people call TEA, but I don’t know that there is anyone there who can help with this. But I think our lead diagnostician would be available Saturday night. Why don’t you ask her out? DEAR DAWG: Scientists are now saying that it may be possible to re-create extinct species from DNA. There is serious talk about re-creating a woolly mammoth, for example, and even talk that we might be able to develop a Neanderthal. Is this type of activity legal???? What a science experiment this would be! If we could pull this off at our school, we are sure to win the Junior High Science Fair! HOPING TO LIVE TO SEE THE CREATION OF NICK NEANDERTHAL. DEAR HOPING: Yes, we read that article in the paper too, but we can’t give you a lot of help on this. We do not know all the legal implications of species re-creation and will leave that to lawyers smarter than us. But we do have some practical concerns about the Neanderthals. If they actually were able to create “Nick Neanderthal” here in Texas, the guy might get elected to the State Board of Education.

Got a comment or question for the Dawg? Send it to jwalsh@wabsa.com.


10

LEGAL DEVELOPMENTS BUSINESS TRANSACTIONS Contract Disputes CAN A PROJECT MANAGER OF A CONSTRUCTION CONTRACT BE HELD LIABLE FOR THE FAULTY DESIGN AND CONSTRUCTION OF A SCHOOL BUILDING? Case citation: Somerset ISD v. Nicholson Professional Consulting, Dkt. No. 04-08-00051-CV (Tex. App. – San Antonio 2008). Summary: Somerset Independent School District and Somerset Independent School District Public Facility Corp. (Somerset) entered into a contract with Unico Construction Co. for the construction of an early childhood center. [Editor’s Note: generally, a public facility corporation is a separate legal entity created by a school district for the purpose of financing the purchase of property, construction of improvements, among other things, and is authorized by the Public Facility Corporation Act, Local Government Code, Chapter 303]. Mid-Continent Casualty Company (Mid-Continent) was Unico’s surety for the project. Unico began construction in 1998, but ultimately defaulted on the contract in February of 2000. At the time, the project was 98 percent complete. Mid-Continent took over the project and completed it. In March of 2004, Somerset sued multiple defendants for negligence in the construction and design of the early childhood center. Among others, Somerset sued Nicholson Professional Consulting (NPCI), alleging that faulty construction and design resulted in extensive water damage. Somerset maintained that an NPCI employee acted as the project manager and, as a result, was responsible for the faulty construction. NPCI filed a motion requesting judgment in its favor prior to trial arguing that its employee did not serve as the project manager. The trial court granted NPCI’s motion. Somerset appealed the trial court ruling. NPCI responded that the evidence conclusively established that it was a contract administrator and not an on-site manager and, as a result, it was not responsible for the construction problems. Ruling: The appeals court reversed the judgment in favor of NPCI and returned the case to the trial court for further proceedings. It determined that genuine issues of material fact existed with regard to NPCI’s legal duty and whether it breached an implied warranty to perform the construction in a good and workmanlike manner. A Mid-Continent surety claims manager testified that he hired an NPCI employee as the contract administrator. According to Mid-Continent, the NPCI employee only engaged in project management paperwork

and was not actually involved in the design or construction of the project. In contrast, Somerset produced invoices demonstrating that the NPCI employee was involved in on-site management of the project. The invoices indicated that the NPCI employee dealt with construction issues as they arose on the construction site, coordinated the subcontractors and suppliers, reviewed drawings, and wrote a letter to the district’s superintendent about a water leak issue that he investigated. According to the appeals court, the invoices and other activity by the NPCI employee raised a genuine issue of material fact on whether NPCI acted as the project manager and whether it, thus, had a legal duty to perform the construction in a good and workmanlike manner. NPCI was not entitled to judgment in its favor prior to trial on the negligence and breach of contract claims brought by the school district.

GOVERNANCE TEA Action WAS THE BOARD OF TRUSTEES ENTITLED TO STOP THE TEA’S APPOINTMENT OF A BOARD OF MANAGERS TO OPERATE THE SCHOOL DISTRICT? Case citation: Ross v. Texas Education Agency, Dkt. No. H-08-3049 (S.D. Tex. 2008). Summary: On July 31, 2008, the Commissioner of Education informed the North Forest Independent School District board of trustees that its duties would be suspended temporarily and it would be replaced with an appointed board of managers pursuant to Texas Education Code § 39.131(a)(9) and § 39. 136. The board requested a “record review” of the decision, which after some scheduling conflicts, was scheduled for October 2, 2008. However, on the day of the hearing, the district and board filed a state court action in an effort to stop the hearing arguing that the record review proceeding should have been held in Houston so that all board members could attend. The trial court denied the request and the “record review” hearing before the TEA proceeded. At the hearing, the board’s counsel requested that the hearing be postponed. The Deputy Commissioner who conducted the hearing denied that request and recommended that no changes be made to the Commissioner’s proposal to replace the board of trustees. The board and the district, through their state court lawsuit, unsuccessfully tried to halt the appointment of the board of managers. Ultimately, however, the trial court and a


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Governance, continued state appellate court rejected their claims. Consequently, the Commissioner suspended the duties of the district’s board of trustees and replaced it with a three-member board of managers on October 16, 2008. The trustees then filed suit in federal court against the TEA and the Sate of Texas alleging that the Commissioner’s actions violated Sections 5 and 2 of the Voting Rights Act of 1965, as well as their due process and equal protection rights. The trustees sought a temporary restraining order (i.e., a temporary order pending resolution of the merits of the case) asking that they be reinstated while they litigated their claims. They also asked that their claims under Section 5 of the Voting Rights Act be heard before a three-judge panel. Ruling: The trial court denied the request of the board of trustees to be reinstated pending resolution of this case and also denied their request for a three-judge panel. The trial court observed that a party seeking a temporary restraining order must establish that (1) there is a substantial likelihood of success on the merits, (2) a substantial threat of irreparable harm exists, (3) the threatened injury outweighs the threatened harm to the defendants, and (4) granting the temporary restraining order would not disserve the public interest. Here, the trial court first determined that the trustees were not entitled to a three-judge panel to hear their claims under Section 5 of the Voting Rights Act. The trial court ruled that, under the Voting Rights Act, because the TEA had obtained preclearance from the Department of Justice for its actions in appointing a board of managers, the trustees did not have a right to a three-judge panel under the Act. The trial court also concluded that the trustees were not entitled to a temporary restraining order which would have reinstated them pending the final litigation of their claims. According to the trial court, the trustees failed to show a substantial likelihood of success on their Voting Rights Act, due process, and equal protection claims. The trustees failed to produce evidence, or otherwise demonstrate how the Commissioner’s actions violated the Voting Rights Act. They also provided no authority or analysis to support their due process or equal protection claims. According to the trial court, those constitutional claims were likely barred by the State’s sovereign immunity under the Eleventh Amendment. The trustees argued that the Commissioner’s actions violated their equal protection rights because they were treated differently from other elected county officials. The trial court observed, however, that the Texas Constitution specifically permits removal of elected officials for “other causes defined by law,” such as the TEA sanctions for poor-performing schools that came into play in this case. Further, no equal protection violation would occur if TEA could demonstrate that the difference in treatment was rationally related to a legitimate state interest. According to the trial court, the “State has a legitimate interest in addressing the continued financial stability of its school districts, and the temporary suspension of the duties of a dysfunctional board of trustees is rationally

related to this end.” Thus, the trustees did not demonstrate a likelihood of success on their equal protection claim. The trustees’ due process claims were also unlikely to succeed. The trustees failed to demonstrate either that they had a valid property interest or that they were denied adequate notice and an opportunity to respond to the Commissioner’s actions. The record showed that the Commissioner gave the board an opportunity to present its case at the “record review” proceeding. The trustees also failed to show that they would suffer irreparable harm as a result of the Commissioner’s actions. Further, the trial court stated that the “State, NFISD, and the public will all be disserved should the Court grant the relief requested” by the board. The trial court, therefore, denied the board’s request for a temporary restraining order.

Public Information Act DOES THE FAILURE TO REQUEST AN ATTORNEY GENERAL OPINION OVER A PUBLIC INFORMATION REQUEST ALWAYS REQUIRE DISCLOSURE OF OTHERWISE PROTECTED INFORMATION? Case citation: Doe v. Tarrant County District Attorneys, Dkt. No. 2-07-012-CV (Tex. App. – Fort Worth 2008). Editor’s Note: This case does not involve a school district but is relevant to educators. The case deals with a request for information under the Public Information Act and is instructive on how similar issues may be handled in the school context. Summary: Jacob Muniz, a former employee of the Boys and Girls Clubs of Greater Fort Worth, Inc., pled guilty to indecency with a child and was sentenced to four years’ confinement. F. Doe was one of Muniz’s victims. In investigating a potential civil lawsuit against Muniz and the Boys and Girls Clubs, the Doe family sent public information requests to the Tarrant County District Attorney (DA) and the sheriff’s office seeking documents related to Muniz’s investigation, prosecution, and incarceration. The DA was in charge of handling both open records requests. In response to the Public Information Act (PIA) requests, the DA drafted a letter to the Texas Attorney General asking for an opinion on whether 277 pages of the requested documents were exempted from disclosure. The DA, however, inadvertently sent this letter, and the allegedly exempted documents, only to Doe. As a result, the Attorney General did not receive the DA’s request for an opinion on the public information request. The Doe family later sued Muniz and the Boys and Girls Clubs stemming from the alleged sexual assault of F. Doe. During the course of the litigation, the Doe family used some of the documents they received from the DA. The DA later


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Governance, continued learned that the Attorney General had not received its letter requesting an opinion on Doe’s public information request. The DA immediately sent Doe a formal written demand seeking return of the documents and submitted a new letter to the Attorney General requesting an opinion concerning release of the documents. The Doe family refused to return the documents. The DA then became a party to Doe’s lawsuit against Muniz and the Boys and Girls Clubs and sought a protective order, prohibiting further disclosure of the documents. The Does, in response, filed their own claim against the DA and requested that the trial court order the DA to formally release the documents. The Does argued that the DA’s failure to request an Attorney General opinion timely resulted in a presumption that the documents were public and that the DA did not meet its burden to show a “compelling reason” to withhold the documents. The trial court entered a protective order requiring the Does to return all of the disclosed documents to the DA and to turn over to the court all of the depositions taken during the course of the litigation that referred to the documents. The trial court ordered the Does to identify any party to whom they had disclosed the documents. In addition, the order prohibited all parties from further copying or duplicating the documents. The trial court ultimately denied the Does’ request for release of the documents and the Does appealed.

Code § 261.201, which deems such information confidential. The NCIC and TCIC reports relating to Muniz were also confidential. Texas Government Code § 411.083 provides that criminal history record information maintained by the Department of Public Safety is confidential information and may not be disseminated by the department. Muniz’s jail visitation records also were protected from disclosure. The appeals court observed that records implicating the constitutionally protected privacy interests of a third party are protected from disclosure under the PIA. In this case, the Constitution provides inmates and private persons with a privacy interest in maintaining the confidentiality of correspondence and communication between them. The DA demonstrated a compelling reason to withhold the documents and, thus, the trial court did not err when it entered the order prohibiting release of the documents. Things to Remember: If the governmental agency does not seek an opinion from the Attorney General in a timely fashion, the information requested is “presumed” public. This general rule of presumption applies whether the failure was intentional or accidental as it was here. However, as this case points out, there are exceptions.

Pre-Kindergarten Programs

Ruling: The appeals court determined that the documents were protected from disclosure under the PIA despite the DA’s untimely request for an Attorney General opinion on the public information request. The PIA generally requires disclosure of public documents and information upon request to a governmental entity. However, the PIA provides exceptions to the disclosure requirements for documents that are considered to be confidential by law.

COULD THE ATTORNEY GENERAL DETERMINE WHETHER THE SCHOOL DISTRICT’S PREKINDERGARTEN PROGRAMS WERE EXEMPT FROM STATE CHILD-CARE LICENSING REQUIREMENTS?

Under the PIA, if a governmental agency receives a request for information that it believes to be within an exception to disclosure, it must request an opinion on the matter from the Attorney General and notify the requesting party that it has done so. If the agency fails to make a timely request, the information requested is presumed to be subject to disclosure and must be released unless the governmental agency provides a “compelling reason” to withhold the information.

Summary: On behalf of Spring Branch Independent School District, the Commissioner of Education asked the Attorney General whether the district’s pre-kindergarten programs, run in collaboration with a Head Start agency, were exempt from licensing requirements for child-care facilities.

Here, the Does’ original PIA request sought disclosure of (1) documents used or developed in the investigation of abuse or neglect of a child; (2) Muniz’s Tarrant County Jail visitation cards; and (3) National Crime Information Center (NCIC) and Texas Crime Information Center (TCIC) reports. The appeals court held that the DA presented a “compelling reason” to withhold that information. According to the appeals court, the requested documents were confidential by law and implicated the privacy interests of a third party. Thus, the information was protected from disclosure even though the DA failed to make a timely request for an open records decision. The appeals court held that the Does’ request seeking information regarding investigations into allegations of child abuse reports were exempt from disclosure by Texas Family

Case citation: GA-0678 (2008).

Human Resources Code § 42.041 prohibits any person from operating a child-care facility without a license issued by the Department of Family and Protective Services. One exception to the licensing requirement applies to facilities “licensed, operated, certified, or registered by another state agency.” Another exception applies to educational facilities in counties with a population of less than 25,000, that are accredited by the Texas Education Agency (TEA), Southern Association of Colleges and Schools, or the Texas Private School Accreditation Commission. For that second exception to apply, the facility must operate primarily for educational purposes in kindergarten and above. Further, under 40 Tex. Admin. Code § 745.119, an accredited educational facility for grades pre-kindergarten and above are exempt from the childcare facility licensing requirements if (1) the facility operates primarily for educational purposes, (2) the facility “operates” the program, (3) all children are at least pre-kindergarten age, and (4) the TEA, Southern Association of Colleges and


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Governance, continued Schools, or the Texas Private School Accreditation Commission accredits the facility. The main issue before the Attorney General was whether the Spring Branch ISD’s pre-kindergarten program, which was run in collaboration with Head Start, was “operated” by the district, thus, giving rise to the licensing exception. Ruling: The Attorney General determined that whether the district or the Head Start program “operated” the pre-kindergarten program was a question of fact for the Department of Family and Protective Services to determine. The Attorney General generally does not decide questions of fact. According to the Attorney General, the Texas Department of Family and Protective Services had the authority to make rules to carry out the provisions of chapter 42 of the Human Resources Code and to enforce those rules. The Attorney General could not decide whether the Spring Branch Independent School District’s pre-kindergarten programs were exempt from statutory childcare licensing requirements. Things to remember: The Attorney General can only issue a legal opinion when the facts are established or at least undisputed. Here, there was a factual dispute that was critical to the legal analysis, so the AG declined to provide a legal opinion. Remember that the advice given by private attorneys is also dependent on the facts. Be sure that you disclose all relevant facts to your attorney before seeking a legal opinion or analysis.

LABOR AND EMPLOYMENT Appraisals WHAT IS REQUIRED IN A PRINCIPAL’S EVALUATION? WHAT HAPPENS IF THE APPRAISAL IS FLAWED? Case citation: Hall v. North East ISD, Dkt. No. 019-R101106 (Comm’r Educ. September 8, 2008). Summary: Nathalie Hall was an elementary school principal for the North East Independent School District. The district had adopted the Commissioner-Recommended Administrator Appraisal Process. On January 30, 2006, a focus group meeting of employees was held to discuss Hall’s performance. That same day, Hall received a formative evaluation that had been conducted by four associate superintendents. She received ratings of Exceeds Standard Expectations in all domains except for Professional Growth and Development, which was rated Standard Expectations Met. An associate superintendent placed Hall on a growth plan in February of 2006. In May, she was reassigned to assistant principal at a high school. She later received her

summative annual appraisal for the 2005-06 school year. The appraiser rated Hall as Exceeds Standard Expectations in two domains, as Standard Expectations Met in four domains, and Needs Improvement in five domains. In three domains, the appraiser rated Hall as both Standard Expectations Met and Needs Improvement. The Commissioner-Recommended Student Performance Domain also was executed. On the first page of the document, the appraiser wrote: “N/A – TRANSFERRED/ REASSIGNED.” On the second page, where goals and intervention plans are addressed, the appraiser wrote: “SEE GROWTH PLAN FOR NEW ASSIGNMENT.” Hall filed a grievance complaining that the district improperly evaluated her. Specifically, she alleged that the district (1) changed the Commissioner-Recommended Administrator Appraisal process without board approval, (2) failed to use the Commissioner’s domains and descriptors, (3) did not focus on student performance as a primary consideration, (4) failed to document and give her timely notice of complaints, (5) did not include in the appraisal the achievement of set goals, (6) changed the formative appraisal process without board approval, and (7) improperly placed her on an intervention plan. The district denied her grievance and Hall appealed to the Commissioner of Education. Ruling: The Commissioner concluded that Hall’s appraisal for the 2005-06 school year was invalid but denied all other relief requested by Hall. The Commissioner observed that the appraisal process for administrators differs significantly from the appraisal process of teachers. Districts are given the discretion to either select the Commissioner-Recommended Administrator Appraisal Process or develop their own process. The district here adopted the Commissioner-Recommended process. Contrary to Hall’s contentions, a school district that adopts the Commissioner-Recommended process is not required to adopt the Commissioner-Recommended domains and descriptors. However, according to the Commissioner, the domain related to student performance is the only domain that must be adopted if a district adopts the Commissioner-Recommended Administrator Appraisal Process. Under 19 Tex. Admin. Code § 150.1021(c), the student performance domain for principal appraisals must read as follows: “The principal promotes improvements of the performance of students on campus through activities such as comparing disaggregated student performance results to state accountability standards and to prior year performance.” Further, under 19 Tex. Admin. Code § 15.022(g)(4), the results of the Commissioner-Recommended student performance domain “shall be a primary consideration in determining a principal in need of assistance.” By board vote, the district adopted the student performance domain but did not use it in evaluating Hall. The requirement to evaluate Hall under the student performance domain was mandatory, according to the Commissioner. The district’s failure to use the student performance domain rendered Hall’s 2005-06 evaluation invalid. Hall argued that, since the evaluation was invalid, the intervention plan also was invalid. The Commissioner


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Labor and Employment, continued disagreed and observed that intervention plans are not limited to instances of low appraisal scores. Intervention plans may be created when a district believes they would be helpful. Further, principals cannot appeal an intervention plan based on informal observations or a formal appraisal. According to the Commissioner, invalidating an appraisal does not invalidate an intervention plan.

agreement provided that the faculty hearing panel would make factual findings and a determination about whether to terminate Miller for a violation of ACCD policy. The board of trustees also agreed that it would be advised by retired Texas District Judge James Meyers on whether substantial evidence supported the panel’s determination. The board agreed that it would be bound by Judge Meyers’s decision.

The Commissioner rejected the woman’s other claims. The district did not use anonymous input and complaints during the January 30, 2006, focus group meeting of employees to discuss Hall’s performance. All input was provided by known parties. Unlike in the appraisal rules for teachers, the district was not required to provide administrators prior notice and documentation of complaints that affected her appraisal. The Commissioner did not have jurisdiction over Hall’s claims that the district violated DN(LOCAL). Also, contrary to Hall’s contentions, the district was not required to make reference to Hall’s previously set annual goals, expectations, and priorities. The Commissioner held that Hall’s 2005-06 appraisal was invalid but denied all other relief requested by Hall.

Pursuant to the settlement agreement, the faculty hearing panel convened to consider Miller’s termination. The panel ultimately concluded that ACCD violated its own policies in terminating Miller by not properly investigating the sexual harassment complaints. Further, although Miller violated ACCD’s sexual harassment policy, his actions did not warrant termination, according the hearing panel. Judge Meyers then determined that substantial evidence existed to support the panel’s decision. Upon review of Judge Meyers’s decision, the ACCD returned the matter to the faculty hearing panel due to concerns that the panel did not properly apply its sexual harassment policy. The panel reconvened and voted to stand by its earlier findings. The ACCD board, nevertheless, terminated Miller for violating its sexual harassment policy, concluding that the faculty hearing panel exceeded its authority in interpreting ACCD policy.

Things to remember: This is one of the few cases we have that delve into the details of administrator appraisals. This case points out that there are significant distinctions in the process that applies to teachers vs. the process for administrators. Curriculum directors as well as HR directors should study the Commissioner’s decision carefully.

Breach of Contract DID THE COMMUNITY COLLEGE DISTRICT BREACH A SETTLEMENT AGREEMENT REACHED IN A LAWSUIT BROUGHT BY A TENURED PROFESSOR? Case citation: Alamo Community College District v. Miller, Dkt. No. 04-07-00384-CV (Tex. App. – San Antonio 2008). Summary: Dr. William Miller was a tenured chemistry professor at San Antonio College. In 1996 and 2001, two separate complaints of sexual harassment were made by female coworkers. As a result of investigations into those allegations, the Alamo Community College District (ACCD), which operated San Antonio College, gave Miller the opportunity to retire from his position. When Miller refused to retire, ACCD terminated him for improper sexual behavior during the course of his employment. Miller later filed suit alleging that ACCD terminated him without due process. Miller and ACCD reached a settlement agreement, agreeing that Miller would be given an opportunity to challenge his dismissal before a faculty hearing panel. The

Miller then filed suit against ACCD for breaching the settlement agreement. The trial court granted judgment in favor of Miller but denied his request for two years’ salary. Both Miller and ACCD appealed the trial court rulings. Ruling: The appeals court upheld the judgment in favor of Miller and also upheld the trial court’s decision not to award Miller two years’ salary. Under the express terms of the settlement agreement, the ACCD board agreed to be bound by the faculty hearing panel’s decision if it was supported by substantial evidence. Further, once Judge Meyers concluded that the faculty hearing panel’s decision was supported by substantial evidence, ACCD’s board of trustees had no authority to reject the panel’s decision to reinstate Miller. The ACCD, thus, breached the settlement agreement when it rejected the faculty hearing panel’s decision to reinstate Miller. Under the terms of the agreement, Miller was entitled to reinstatement and $487,237.57. Miller also sought an additional two years’ salary as compensation for the ACCD’s breach of the settlement agreement. The appeals court, however, rejected Miller’s request because he had failed to mitigate his damages. In Texas, a wrongfully discharged employee must exercise reasonable diligence to mitigate damages by pursuing other employment. The record, here, showed that Miller made no attempt to secure a teaching position similar to the one he held with ACCD, or otherwise actively seek any employment opportunities following his termination. Because Miller failed to mitigate his damages, he was not entitled to the requested two years’ salary.


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Labor and Employment, continued Discrimination WAS THE SCHOOL DISTRICT ENTITLED TO DISMISSAL OF THE EMPLOYEE’S DISCRIMINATION CLAIM? Editor’s Note: This is a continuation of a case previously decided in favor of the district. For a detailed analysis of the court’s reasoning as set out in the court’s original order see Texas School Administrators’ Legal Digest, Nov./Dec. 2008. Case citation: Moore v. Duncanville ISD, Dkt. No. 3-06-CV2085-BD (N.D. Tex. 2008). Summary: Daniel G. Moore was fired from his position as an assistant security operations officer for the Duncanville Independent School District. Moore, who was Hispanic, filed suit against the school district claiming national origin discrimination in violation of Title VII of the Civil Rights Act of 1964. In response, the district filed a motion requesting judgment in its favor prior to trial. Moore’s attorney did not file a response to the motion and the trial court ultimately granted judgment in favor of the district. Moore then filed a motion requesting that he be allowed to respond to the motion, claiming that his attorney had not received a copy of the school district’s motion and did not learn of it until he received the trial court’s order granting judgment in favor of the district. Ruling: The trial court considered Moore’s evidence in support of his claims, but determined that the national origin discrimination claims were still without merit. As the court held in its original order dismissing the case, Moore (1) could not show that he was replaced by someone outside of his protected class, (2) failed to produce direct or circumstantial evidence that he was terminated because he was Hispanic, (3) could not demonstrate that similarly situated white employees were treated more favorably than him, and (4) offered no evidence to rebut the district’s legitimate, nondiscriminatory reasons for terminating him. The trial court, thus, dismissed Moore’s national origin discrimination claims against the district.

EMPLOYMENT DISCRIMINATION CLAIM FAILED; RETALIATION CLAIM REMAINED Case citation: Boone v. Gibson, Dkt. No. 3-07-CV-0744-L (N.D. Tex. 2008). Summary: Darin Keith Boone, an African American, was employed by the Crowley Independent School District from June 2000, until his resignation on August 3, 2005. He had served primarily as the assistant principal of one of the district’s ninth grade schools. On two occasions he sought principal positions, but the jobs went to other applicants. In 2004, several African American students complained to Boone that they were being mistreated by white teachers. When Boone reported those concerns to the principal, the principal

instructed him to discipline the students. Boone refused and instead provided information to the students and their parents regarding the district’s grievance policy. Following those efforts to help the students, Boone claims that he began receiving negative reports in his personnel file. In October 2004 and February of 2005, the principal reprimanded Boone for poor job performance and inadequate communication skills. He also was reassigned to a high school and later to an alternative school campus. Believing that the district’s actions amounted to race discrimination, Boone hired an attorney and informed the district the he intended to sue. On August 3, 2005, the parties settled the dispute by entering into a Resolution Agreement (Agreement). Under the terms of the Agreement, Boone voluntarily resigned. In return, the district agreed to (1) pay Boone his monthly salary through the 2005-06 school year, (2) provide a neutral employment recommendation, and (3) keep the settlement agreement confidential. Boone also agreed to release the district from any further claims related to the events occurring during Boone’s employment with the district. Despite the Agreement, Boone later filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and ultimately filed suit against the district and several employees for discrimination and retaliation. The lawsuit alleged that the district violated Title VII of the Civil Rights of 1964, when it refused to hire him for vacant principal positions, gave him negative performance appraisals, transferred him, and failed to provide a neutral job recommendation. He also sued for breach of contract and intentional infliction of emotional distress under Texas law. In response, the defendants requested judgment in their favor prior to trial arguing that Boone released all of his Title VII claims by signing the Agreement or failed to include the claims in his EEOC charge of discrimination. Ruling: The trial court agreed that Boone waived or released any Title VII claim involving an adverse employment action that occurred prior to the date of the Resolution Agreement. The Agreement was a settlement of all of the issues raised in Boone’s race discrimination and retaliation claims, as well as any other claim that might have existed at the time of the Agreement. The only Title VII claim that arose after the Agreement referred to the district’s alleged “failure to provide a neutral job recommendation as required by the Agreement.” The record in that regard showed that when a potential employer attempted to contact the district for a recommendation for Boone, the employer first was put on hold and ultimately was disconnected. The trial court concluded, however, that Boone did not exhaust his administrative remedies with respect to this claim because it was not included in his EEOC charge of discrimination. The trial court also determined that Boone’s claim for intentional infliction of emotional distress was without merit. To establish such a claim, Boone had to show that the


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Labor and Employment, continued defendants acted intentionally or recklessly, the conduct was “extreme and outrageous,” and the actions caused the plaintiff severe emotional distress. Again, any conduct occurring prior to the Resolution Agreement was barred by the Agreement. The only post-Agreement conduct supporting his intentional infliction of emotional distress claim was the alleged failure to provide a neutral recommendation. According to the trial court, however, that conduct simply did not amount to “extreme and outrageous” conduct. The intentional infliction of emotional distress claim failed.

Following his termination, Belgrave allegedly was informed that his last paycheck and other personal property would be provided to him when he returned his keys and any other district property in his possession. Several months later he received a letter from the district containing that same information. Belgrave complained to school personnel that the district was holding his paycheck in retaliation for his EEOC complaint. The district eventually released his last paycheck and personal belongings even though Belgrave did not return his keys or other district property.

The trial court dismissed Boone’s discrimination and retaliation claims but did not dismiss Boone’s First Amendment retaliation and breach of contract claims. The district defendants had not specifically requested dismissal of the First Amendment claim and the trial court did not have enough information to rule on the breach of contract issues.

Belgrave filed a charge with the EEOC and the Texas Workforce Commission alleging discrimination and a hostile work environment. He later sued the school district for discrimination, hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964. In response, the district filed a motion requesting dismissal of the claims prior to trial.

DISCRIMINATION CLAIM FAILED

Ruling: The trial court entered judgment in favor of the district on each of Belgrave’s claims. Belgrave, who filed suit without the assistance of legal counsel, could not demonstrate that he was terminated due to his race. Specifically, he failed to demonstrate that other employees outside of his protected class, who engaged in “nearly identical” conduct, were treated more favorably than him. He also did not rebut the district’s legitimate nondiscriminatory reasons for his termination. The record showed that the district had a good faith belief, through its investigation, that Belgrave violated the school’s attendance policies by failing to call in his absences timely. Belgrave was given an opportunity to submit a rebuttal to the allegations at the district level, but he declined to do so. Belgrave simply failed to offer evidence that the district’s investigation or conclusions were motivated by his race.

Case citation: Belgrave v. Splendora ISD, Dkt. No. H-071704 (S.D. Tex. 2008). Summary: Michael Belgrave was hired by Splendora Independent School District as an at-will aide for a junior high school Student Assignment Center (SAC). As a SAC aide, he was responsible for overseeing the SAC classroom, an on-campus disciplinary placement for students who had engaged in minor disciplinary infractions. Shortly after he was hired, Belgrave began to have difficulties. In September of 2006, he was issued two written reprimands concerning performance problems. Belgrave did not contest or respond to the reprimands, despite being told of his right to do so. A few days later, Belgrave, an African American, discovered a racially charged note taped to the door of his classroom. He turned the note over to school administrators who concluded that it likely was not a serious threat to Belgrave. The district claimed that it reported the matter to campus police and took steps to procure security cameras for Belgrave’s classroom. Around this same time, Belgrave had contacted the Equal Employment Opportunity Commission (EEOC) to obtain information regarding race discrimination and harassment. He did not notify the district about his inquiry with the EEOC. Shortly after finding the note on his door, Belgrave suffered a back injury that caused him to miss work. The district’s attendance policies required Belgrave to notify the district if he intended to be absent no later than 6:30 a.m. on the day of the absence so that the school could arrange for a substitute. Belgrave missed seven days of work in a twoweek period. On one occasion, he did not notify the school of his absence until 8:15 a.m. As a result, he was issued a written reprimand. On October 17, 2006, the district claimed that Belgrave again failed to notify the school of his absence under the district’s policy. As a result, the district terminated Belgrave’s employment.

Belgrave’s claim that the district terminated him in retaliation for his involvement in some protected activity also failed. The record showed that Belgrave contacted the EEOC prior to his termination for general information about discrimination and retaliation. There was no evidence to show that any school district official knew of his actions in contacting the EEOC. Alternatively, Belgrave argued that his final paycheck was withheld in retaliation for his later EEOC charge of discrimination. The district, however, established a legitimate nonretaliatory reason for withholding the paycheck – its policy requiring an employee to return district property prior to release of a final paycheck. The district claimed that it had informed Belgrave of that policy prior to his EEOC charge. Thus, Belgrave could not demonstrate that the district withheld his paycheck in retaliation for filing the charge of discrimination. Belgrave claimed further that he was subjected to a hostile work environment, citing the incident in which a racially charged note was left on his door. According to the trial court, however, that isolated incident was insufficient to create a hostile work environment under Title VII. Further, the conduct was committed by third parties and, thus, could


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Labor and Employment, continued not be attributed to the district. The district took action to investigate the matter and discipline those responsible for the note. Thus, Belgrave could not establish a hostile work environment claim against the district stemming from the racially offensive note. The trial court dismissed each of Belgrave’s claims against the district.

Nonrenewal NONRENEWAL UPHELD Case citation: Strickland v. Dallas ISD, Dkt. No. 075-R10808 (Comm’r Educ. Oct. 15, 2008). Summary: Mary Strickland was a high school math teacher employed under a term contract by the Dallas Independent School District. The high school campus was rated academically unacceptable by the Texas Education Agency (TEA) for the 200506 and 2006-07 school years. As a result, the Commissioner of Education ordered that the school be reconstituted and assigned a Campus Intervention Team (CIT) to oversee the process. As part of the reconstitution of the campus, the CIT had to determine whether each individual teacher should be retained on the campus. The CIT determined that Strickland should not be retained because her students were not passing the Texas Assessment of Knowledge and Skills (TAKS) test and were not showing sufficient improvement in their TAKS scores. The district proposed Strickland’s nonrenewal due to a lack of significant student growth. Strickland received a hearing before a certified hearing examiner who ultimately recommended that Strickland’s employment contract not be renewed. Based on that recommendation, the board voted to nonrenew Strickland’s term contract. In doing so, the board issued a decision in which it made a number of new findings of fact not included in the hearing examiner’s recommendation. Strickland appealed her nonrenewal to the Commissioner of Education arguing that the board (1) failed to consider her Professional Development and Appraisal System (PDAS) appraisals and (2) improperly changed the recommendation of the certified hearing examiner in violation of Texas Education Code § 21.259. Ruling: The Commissioner upheld the nonrenewal of Strickland’s term contract due to the significant lack of student progress. The Commissioner rejected Strickland’s challenge to the CIT process holding that a teacher cannot defeat a proposed nonrenewal by showing that the CIT process was flawed. The time to challenge a CIT decision not to retain a teacher would be during the reconstitution process and not at the time of nonrenewal. According to the Commissioner, Strickland should have filed a grievance when she was given notice that she would not be retained as a teacher at the campus.

The Commissioner next concluded that, contrary to Strickland’s contentions, the board did consider her most recent evaluations prior to the nonrenewal decision. Strickland first argued that the board violated its own policy which required the board to consider her PDAS appraisals prior to any proposal to nonrenew. According to the Commissioner, a violation of board policy would not invalidate the nonrenewal because the policy goes beyond what is required by state law. Texas Education Code § 21.203(a) only requires the board to consider the most recent evaluation before making a decision not to renew a teacher’s contract if the evaluation is relevant to the reason for the board’s action. There is no requirement in § 21.203 that the board review the evaluations prior to proposing nonrenewal. Here, the record reviewed by the board prior to the nonrenewal decision included Strickland’s most recent evaluations. Thus, substantial evidence existed to show that the board considered the evaluations as required by Education Code § 21.203(a). Strickland next complained that the board improperly used information other than her evaluations in deciding to nonrenew her contract. The Commissioner held, however, that Education Code Chapter 21, subchapter E does not prohibit a board from considering other performance information in making a nonrenewal decision. The board was free to consider the CIT information and other information in addition to Strickland’s evaluations. The Commissioner next considered whether it was proper for the board to add new findings of facts to its written decision on Strickland’s nonrenewal. The Commissioner observed that the board’s decision did not identify findings that it was modifying. Rather, the decision document contained solely new findings. The Texas Supreme Court has held that there is no authority in the Texas Education Code allowing a board to make additional findings of fact. Thus, the Commissioner struck the additional findings made by the board and adopted the independent hearing examiner recommendation as a whole. The Commissioner ultimately concluded that substantial evidence existed to support Strickland’s nonrenewal due to lack of significant student progress that was attributable to her. The record showed that her students were not passing the TAKS in significant numbers. Based on the poor showing of Strickland’s students on the TAKS and other performance problems, the evidence demonstrated a lack of academic progress that was attributable to Strickland. Things to remember: School districts are not required to use the certified hearing examiner system for nonrenewals, but when they do, the decision of the hearing examiner will carry considerable weight. As this case illustrates, it is difficult for a teacher to overcome a hearing examiner’s recommendation in favor of the school district. This case is also noteworthy for the determination that a violation of board policy does not necessarily mean that state law has been violated.


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Labor and Employment, continued DID GOOD CAUSE EXIST TO TERMINATE THE TEACHER’S TERM CONTRACT? Case citation: Toussaint v. Dallas ISD, Dkt. No. 071-R20708 (Comm’r Educ. September 9, 2008). Summary: Sharon Toussaint was employed under a term contract as a high school teacher by the Dallas Independent School District. The high school campus failed to meet minimal standards for two straight years. As a result, the Commissioner ordered that the campus be reconstituted. A Campus Intervention Team (CIT) was assigned to oversee the campus and determine whether each individual educator should be retained on the campus. The CIT determined that Toussaint should not be retained because her students were not passing the Texas Assessment of Knowledge and Skills (TAKS) and were not showing sufficient improvement in their TAKS scores. The district then sought to terminate Toussaint’s term contract. Toussaint requested and received a hearing before a certified hearing examiner. Following the hearing, the hearing examiner issued a recommendation with findings of fact and conclusions of law. The hearing examiner ultimately concluded that good cause did not exist to terminate Toussaint’s term contract. After receiving the hearing examiner’s recommendation, the district’s board subcommittee issued its decision on Toussaint’s termination. The board rejected and changed a number of findings of fact and one conclusion of law and determined that good cause existed to terminate Toussaint’s term contract. Toussaint appealed the termination to the Commissioner of Education arguing that the board subcommittee improperly changed the hearing examiner’s recommendation. Ruling: The Commissioner concluded that the district improperly terminated Toussaint’s term contract. According to the Commissioner, the reason given to Toussaint for her termination was the failure to demonstrate a pattern of academic achievement by her students. However, the findings of fact demonstrated that the school’s environment, including the lack of discipline on campus, was the cause of the students’ lack of achievement. Because Toussaint was not the cause of the students’ lack of achievement, good cause did not exist to terminate the teacher’s contract. Contrary to the district’s contentions, the decision by a CIT not to retain a teacher following reconstitution does not constitute good cause per se to terminate a term contract. Texas Education Code § 39.023 provides that if an educator is not retained, the educator may be assigned to another position in the district. Thus, following a CIT decision not to retain a teacher, the district has the option of either following Chapter 21 procedures to end the contract or reassign the teacher to another position in the district. The Commissioner determined that the district improperly changed some of the findings of facts, as well as the conclusion of law that good cause did not exist to terminate Toussaint’s contract. The Commissioner observed that findings of fact

may be rejected or changed only if they are not supported by substantial evidence. New findings of fact cannot be made by a board or board subcommittee. However, a board may rely on undisputed evidence in the record to support changes to conclusions of law. Further, a board must have a written reason and legal basis for all changes to findings of fact, conclusions of law, and proposals for relief. In this case, the Commissioner concluded that the district properly changed or rejected four findings of fact. The remaining findings of fact that the board subcommittee changed were not relevant to the ultimate issue of good cause. The Commissioner concluded that the district improperly changed the hearing examiner’s conclusion of law that good cause did not exist to terminate Toussaint. The evidence showed that the failure of the students was not due to Toussaint but to the school environment. Because good cause did not exist to support Toussaint’s termination, the Commissioner determined that Toussaint was entitled to reinstatement, back pay and benefits, or one year’s salary. The Commissioner granted the teacher’s appeal. Things to remember: Compare this case with the Strickland case from Dallas ISD, discussed above, which arose out of similar circumstances. Here the hearing examiner found in favor of the teacher. In Strickland, the hearing examiner ruled for the school district. In both instances, the decision of the hearing examiner was upheld on appeal.

Retaliation WAS THE GOVERNMENT EMPLOYEE REQUIRED TO EXHAUST ADMINISTRATIVE REMEDIES BEFORE FILING A WORKERS’ COMPENSATION RETALIATION LAWSUIT? Editor’s Note: This case does not involve a school district but is relevant to educators. It discusses whether a government employee must exhaust administrative remedies before filing a workers’ compensation retaliation claim under Texas Labor Code, chapter 451. Note that the appeals court here distinguished such retaliation cases brought in the school context, which required exhaustion of administrative remedies. Case citation: Travis Central Appraisal District v. Norman, Dkt. No. 03-06-00768-CV (Tex. App. – Austin 2008). Summary: Diane Lee Norman was hired by the Travis Central Appraisal District (TCAD) as a probationary employee in January of 2006. On June 15, 2006, she filed a workers’ compensation claim. Later that same day, she received written notice that she had been terminated based on her work performance. Norman filed suit for retaliatory discharge under the Texas Anti-Retaliation Act, Texas Labor Code, chapter 451, which prohibits an employer from terminating an employee for filing a workers’ compensation claim in good faith.


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Labor and Employment, continued In response, TCAD filed a plea to the jurisdiction arguing that the trial court did not have jurisdiction over the lawsuit because Norman had not exhausted administrative remedies. According to TCAD, Norman should have followed its grievance procedures before filing suit. TCAD’s grievance policy described a multi-step grievance process, beginning with informal resolution efforts and continuing with formal proceedings with the department director, the grievance committee, and ultimately the chief appraiser. It was undisputed that Norman did not pursue a grievance regarding her termination. Nevertheless, the trial court denied TCAD’s plea to the jurisdiction, holding that Norman was not required to exhaust administrative remedies before filing suit. Ruling: The appeals court agreed that Norman was not required to exhaust administrative remedies, by pursuing a grievance under TCAD’s policies, before filing suit for workers’ compensation retaliation under chapter 451 of the Texas Labor Code. The statute contains no exhaustion requirement and makes no reference to any administrative procedure for resolving disputes prior to filing suit for retaliatory discharge. The appeals court also stated that it “can discern no intent on the part of the legislature to require a plaintiff to exhaust administrative remedies.” Further, if the legislature had intended to make exhaustion a prerequisite to filing suit, it could have included such a provision in chapter 451 of the Labor Code. TCAD argued that exhaustion was required in all cases in which the governmental entity had administrative remedies, i.e., a grievance policy, in place. According to the appeals court, exhaustion of administrative remedies is generally required only when the legislature has vested an administrative agency with exclusive jurisdiction to make an initial determination in a dispute. The appeals court examined several school district cases in which courts had to determine whether exhaustion of administrative remedies was required. The appeals court observed that the Education Code provides the Commissioner of Education exclusive jurisdiction over disputes concerning (1) the school laws of this state and (2) violations of the employee’s employment contract that caused or would cause monetary harm. In the school context, exhaustion would be required if the claims involved issues that the Commissioner had the authority to resolve. According to the appeals court, in the cases cited by TCAD that required employees to exhaust administrative remedies, there was a separate statutory basis for requiring exhaustion apart from chapter 451. The appeals court held, in contrast, that TCAD had shown “no statutory authority investing TCAD, or tax appraisal districts in general, with the authority to engage in the review of an employee’s retaliatory-discharge claim.” Thus, the appeals court concluded that chapter 451 of the Labor Code did not require Norman to exhaust TCAD’s administrative procedures. The trial court properly denied TCAD’s challenge to Norman’s workers’ compensation retaliation lawsuit. Things to remember: This case holds that a government employee is not required to exhaust administrative remedies in

a Workers’ Compensation retaliation case simply because the governmental entity has a grievance policy in place. In the school context, courts will examine whether the Commissioner of Education has jurisdiction over the employee’s dispute. If so, the employee would be required to exhaust administrative remedies before filing suit in state court. That grant of jurisdiction to the Commissioner “means that such claimants must exhaust the local grievance procedures of a school district before filing suit,” according to the appeals court. For a case requiring exhaustion, see Davis v. Dallas County Schools, reported in the July/August 2008 issue of the Texas School Administrators’ Legal Digest.

LIABILITY Personal Liability WERE THE INDIVIDUAL UNIVERSITY OFFICIALS SUED OVER THE TEXAS A & M BONFIRE COLLAPSE ENTITLED TO SOVEREIGN IMMUNITY? Case citation: Bowen v. Comstock, Dkt. No. 10-05-00295CV (Tex. App. – Waco 2008). Summary: In 1999, the annual bonfire being built by students at Texas A & M University collapsed, killing 12 students and injuring 27 others. Several plaintiffs, including estates of students, injured survivors, and relatives of affected students, sued the Texas Aggie Bonfire Committee, Scott-Macon, Ltd., Zachry Construction Corporation and other parties. The suit alleged wrongful death, personal injury, and related claims. The plaintiffs also brought claims against the university and a number of university officials. In response, the university filed motions challenging the court’s jurisdiction based on sovereign immunity. When the trial court denied the university’s motions, the university filed an immediate, pretrial appeal. The appeals court reversed the trial court ruling and determined that the university was entitled to sovereign immunity with respect to each of the plaintiffs’ claims. [See, Texas School Administrators’ Legal Digest, Jan. 2008]. The individual university officials also sought dismissal of the lawsuit based on sovereign immunity. They argued that the lawsuit was brought against them in their “official capacities” as university employees rather than in their “individual capacities” and, as a result, they were entitled to sovereign immunity. The trial court rejected the university officials’ arguments and held that they were not entitled to sovereign immunity. The university officials appealed. Ruling: The appeals court determined that the university officials were not entitled to sovereign immunity. The appeals court observed that a suit against a government employee in


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Liability, continued his “individual capacity” seeks to impose personal liability on the individual. In contrast, “official capacity” lawsuits seek to impose liability against a government entity only. A suit brought against an individual in their “official capacity” is not a suit against the official personally. Only governmental entities, and not individuals, can assert the defense of sovereign immunity. The university officials, in this case, argued that the plaintiffs brought suit against them in their official capacities only and, thus, the lawsuit was barred by sovereign immunity. According to the university officials, the claims were not against them individually because the plaintiffs alleged only acts by the university employees that were done within the course and scope of their employment. The appeals court disagreed and observed that the plaintiffs’ lawsuits clearly stated claims against the university officials in their individual capacities. The plaintiffs specified that they were bringing their claims against the university employees in their individual capacities. The appeals court observed further that governmental employees sued in their individual capacities may be liable personally for acts done within the scope of their employment. In those instances, a government employee being sued in his individual capacity may raise the defense of official immunity. Official immunity exists if the government employee acts within the scope of employment in the performance of a discretionary duty and acts in good faith. Thus, simply because the plaintiffs alleged that the employees were acting within the course and scope of their employment, did not mean that they were suing the university officials in their “official capacities.” Because the lawsuit stemming from the Texas A & M bonfire collapse was brought against the university officials in their “individual capacities,” the officials were not entitled to sovereign immunity. Things to remember: There are different types of immunity available to governmental officials, with different standards for each. This decision only addresses one type of immunity—sovereign immunity. The court made no decision about the application of the “official immunity” doctrine.

PRACTICE AND PROCEDURE Courts WAS THE WOMAN ENTITLED TO LITIGATE HER LAWSUIT AGAINST THE SCHOOL DISTRICT IN STATE COURT? Case citation: Johnson v. Dallas ISD, Dkt. No. 3:08-CV1227-D (N.D. Tex. 2008).

Summary: Melinda Johnson sued the Dallas Independent School District in state court alleging retaliation under the Texas Labor Code, defamation and disparagement, and violations of her civil rights under the First Amendment to the United States Constitution and the Texas Constitution. Based on Johnson’s First Amendment claims, the district removed the case to federal court arguing that the suit presented a question of federal law. A few weeks later, Johnson sought to amend her lawsuit to drop the First Amendment claim and return the case to state court. Ruling: The trial court granted Johnson’s request to drop the First Amendment claim and return the case to state court. A district court has the discretion to return a case to state court after the claims that give rise to federal jurisdiction have dropped out of the lawsuit. In this case, Johnson’s state court lawsuit included three claims, all of which arose under Texas law. Only the First Amendment claim, which factually duplicated her state law civil rights claim, included a federal law component. Johnson requested that she be allowed to drop the First Amendment claim and the trial court granted the request. As a result, because the woman’s remaining claims were based on state law, the trial court returned the case to state court.

Jurisdiction DID THE FEDERAL COURT HAVE JURISDICTION OVER THE FORMER SUBSTITUTE TEACHER’S SUIT CHALLENGING THE DENIAL OF UNEMPLOYMENT BENEFITS? Editor’s Note: This is another lawsuit in ongoing litigation filed by the same former substitute teacher against the Humble Independent School District. She filed two other lawsuits in state court and federal court claiming age discrimination. Each of those lawsuits was dismissed. [See, Texas School Administrators’ Legal Digest, May 2007 and April 2008]. The case below involves claims stemming from the Texas Workforce Commission’s decision to deny her unemployment benefits. Case citation: Kelley v. Humble ISD, Dkt. No. H-08-1396 (S.D. Tex. 2008). Summary: Lucille R. Kelley worked for the Humble Independent School District as a substitute teacher, but the district ultimately terminated her. She later applied for unemployment benefits with the Texas Workforce Commission (TWC). The TWC denied her request. In 2004, Kelley filed two lawsuits in Texas state court challenging TWC’s denial of benefits. Those lawsuits were dismissed because Kelley did not file her lawsuit properly. Specifically, she failed to meet the requirement of Texas Labor Code § 212.201(a), to file a suit challenging a TWC decision against all parties to the previous TWC proceeding. The record showed that Kelley did not sue Humble ISD, which had been a party to the TWC proceeding.


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Practice and Procedure, continued Kelley unsuccessfully appealed the trial court’s ruling. The appeals court affirmed the dismissal of each of the lawsuits and the Texas Supreme Court denied her appeal. Kelley then filed this lawsuit in federal court again challenging the denial of unemployment benefits. She sued the school district, two district employees, the TWC, and its three commissioners. The defendants sought dismissal of the federal court action. Ruling: The federal trial court dismissed Kelley’s action challenging the denial of benefits for lack of subject matter jurisdiction. Kelley’s lawsuit was brought under Texas Labor Code § 207.041 challenging the denial of unemployment benefits. Kelley requested relief solely under state law. Thus, according to the trial court, the lawsuit did not raise a “federal question” which would establish the trial court’s jurisdiction under federal law. Kelley simply failed to raise federal claims in this lawsuit. Kelley’s lawsuit also improperly sought to appeal the state court rulings concerning her TWC claims. The trial court observed that, under the Rooker-Feldman doctrine, federal courts are prohibited from reviewing, modifying, or nullifying final orders of state courts. The woman’s lawsuit here would have required the federal trial court to examine the validity of the state courts’ judgments. Such an action is prohibited by the Rooker-Feldman doctrine. The trial court dismissed Kelley’s federal court challenge to the denial of unemployment benefits.

SPECIAL EDUCATION Child Find Requirements DID THE INTERVENTION ASSISTANCE TEAM’S ATTEMPT AT INTERVENTIONS EXCUSE THE SCHOOL DISTRICT’S DELAY IN EVALUATING THE STUDENT? Case citation: Student v. Houston ISD, Dkt. No. 099-SE-0108 (Hearing Officer Ann Vevier Lockwood, May 9, 2008). Summary: The student began attending school in the Dallas Independent School District in its pre-kindergarten program during the 2005-06 school year. During that school year, the student exhibited academic, communication, and behavioral problems and the pre-kindergarten teacher initiated a speech referral. The referral and parent consent forms were sent to the school’s assistant principal. However, the parent was later informed that an evaluation would not be conducted until first grade due to the child’s age and the district’s belief that the student needed more time to develop certain academic and behavioral skills.

The student attended a different elementary school the following year for kindergarten. The student’s kindergarten teacher also initiated a speech referral but before any action was taken, the teacher left the district. The student’s new teacher did not believe that the speech referral was necessary and did not follow through with it. Nevertheless, the student continued to experience problems in school and the teacher considered retaining the student in kindergarten. Ultimately, however, she did not retain the student and did not make a referral for special education. The student’s first grade teacher, the following school year, recognized almost immediately that the student was below grade level and exhibited extreme behaviors. He was off task frequently, failed to complete his work, left the classroom without permission, and had frequent outbursts. The teacher’s interventions did not lessen his behavioral problems. She characterized him as a “non-reader” and noted poor listening comprehension, illegible handwriting, and difficulty remembering lessons. The student frequently was removed from the classroom. The first grade teacher discussed with the parent having the student evaluated and the parent agreed. Meanwhile, the parent had sought private services from a speech/language therapist for the child. The therapist diagnosed the student with an expressive and receptive speech/ language disorder and articulation disorder. The therapist also recommended that the parent have the student evaluated by a psychologist or psychiatrist due to his behavioral difficulties. The therapist also notified the school’s counselor of those concerns in September of 2007. The counselor indicated that the school would initiate an evaluation. However, by November of 2007, neither the parent nor the therapist had received any further information regarding an evaluation from the district. The therapist later contacted the district for the second time urging that it evaluate the student. In October of 2007, the first grade teacher submitted her concerns to the Intervention Assistance Team (IAT). The IAT was designed to work with teachers to design interventions for students experiencing difficulties in regular education. The IAT made the final decision on whether to refer a student for special education evaluation. In the student’s case, the IAT recommended that the teacher try a number of interventions and document behavioral data in a specific documentary format. Although the teacher already had compiled a significant amount of data, the IAT deemed it insufficient. Further, when the teacher met with the IAT later after implementing the recommended interventions, the IAT had the teacher recompile her data because she did not use the form recommended by the IAT. A third IAT meeting was scheduled for December 20, 2007. Meanwhile, the student’s behaviors escalated and deteriorated. The school notified an evaluation specialist about the student’s behavior and the specialist took the matter to the CMDT, a multidisciplinary team of evaluation specialists and licensed school psychologists. The specialist recommended to the CMDT that the student be evaluated before the December 20th IAT meeting. Independently, the parent had the student evaluated by a psychiatrist who recommended that he be placed


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Special Education, continued on medication. Although the parent notified the first grade teacher about the psychiatrist’s recommendation, the teacher did not notify any other district personnel. The district tried to set up several meetings with the parent to discuss an intervention plan pending the evaluation. The district also tried to conduct a clinical interview and obtain parent consent. However, the parent did not understand the evaluation process and believed that the student was being mistreated. As a result, the parent withdrew the student from the district on January 31, 2008. The parent also requested a due process hearing complaining that the district failed to (1) identify the student as a child with a disability in need of special education services and (2) timely evaluate the student. The parent requested moving expenses, medical expenses, and monetary damages. Ruling: The school district failed to initiate a referral and conduct an initial evaluation for special education eligibility and services in a timely manner. The hearing officer determined that the IAT should have initiated a special education referral when the first grade teacher brought her concerns to the team in mid-October of 2007. Instead, the IAT imposed additional interventions and documentation requirements that unnecessarily delayed the referral process. According to the hearing officer, “[p]re-referral interventions, while well intended, do not excuse Child Find violations.” The student’s inability to master age appropriate academic, behavioral, interpersonal, and communication skills showed that the district had ample reason to suspect that the student had a disability and was in need of special education by the end of the first six weeks of first grade. All of his teachers expressed concerns over his academic and behavioral issues. By first grade, he was the lowest performing student in the class. The hearing officer observed that a request for an initial evaluation may be initiated by either the parent or the district and the initial evaluation must be completed within 60 days of receiving parent consent. In this case, the parent submitted repeated requests for an evaluation both orally and in writing to school district staff beginning in pre-kindergarten. The student’s private speech therapist also made a referral. Nevertheless, the district did not timely seek consent from the parent. The district also did not provide the parent with written notice of its refusal to initiate the identification or evaluation of the child. The district did not meet its child find obligations under the Individuals with Disabilities Education Act (IDEA), did not conduct a timely evaluation, and did not provide the parent written notice of its refusal to proceed with an evaluation. As relief the parent requested a full and individual evaluation (FIE), reimbursement for medical and moving expenses, and an unspecified amount of monetary damages. The hearing officer rejected the parent’s requests for relief. The student was not entitled to an FIE from the district because the student no longer was enrolled there and was being evaluated in his new district. Therefore, this issue was moot. Moving expenses

based upon a parent’s decision to move out of the district and monetary damages were not appropriate forms of relief under IDEA. Finally, the parent failed to produce evidence to support the request for medical expenses. Although the district failed to meet its child find obligations, the hearing officer denied all relief requested by the parent. Things to remember: Current policy and law encourage the use of teams like the IAT to provide interventions to struggling learners through the regular education program. However, the duty to “locate, identify and evaluate” each child with a disability (A.K.A. “child find”) is still alive and well. This case is an example of the fact that the judgment calls made by intervention teams may be second guessed in a due process hearing. Despite finding errors by the school, however, the hearing officer ordered no relief, largely because the family had moved and the student was being evaluated for special education services.

Parent Participation DID THE SCHOOL DISTRICT ERR IN PROPOSING A CHANGE IN PLACEMENT PRIOR TO DEVELOPING AN IEP? WHAT IS “MEANINGFUL PARENT PARTICIPATION”? Case citation: Beaumont ISD v. Student , Dkt. No. 300SE-0707 (Hearing Officer Deborah Heaton McElvaney, May 12, 2008). Summary: The student resided in a highly structured residential facility and qualified for special education services under the classifications of autistic disorder and mental retardation, unspecified. The student received services through the Beaumont Independent School District. He had significant deficits in self-help, social, and self-management skills. He did not generalize skills across settings or interact with peers. He also exhibited aggression, elopement, and self-injurious behaviors, which tended to escalate during unstructured time. The student’s ARD Committee originally placed him in a residential setting in 2002, due to maladaptive behaviors that significantly interfered with his ability to be educated. The facility was a year-round school that provided extended school year services (ESY) for its residents. He also received supplemental services through home and community-based programs. In June of 2006, the student’s ARD Committee met and discussed the possibility of transitioning student to one of the district’s non-residential facilities. It was agreed at that time that the student would remain in the residential setting until the parent could tour the proposed placement and assessments could be completed. The parent toured the facility and had concerns over the safety of the other students due to the student’s aggression.


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Special Education, continued The ARD Committee met again in September of 2006, and proposed that the district’s providers receive training from the residential facility staff on how to work with the student. The Committee also agreed to reconvene in January of 2007, to discuss objectives and plans for transitioning the student. However, no training occurred and the ARD Committee did not reconvene in January of 2007. In June of 2007, the student was scheduled to be removed shortly from the residential facility and placed in a summer camp. The student’s parent learned of the summer placement and realized that the district was moving her child back to the district. The parent requested a transition plan. The district failed to provide the student’s parent with written notice of its intent to move student back to the district. In July of 2007, the ARD Committee met to discuss the student’s removal from the residential facility. There were no written drafts of IEPs for review and the student’s assessments were out of date. The parent requested evaluations in all areas related to his disabilities prior to the removal. The Committee did not reach consensus related to the student’s change in placement or the IEPs to be implemented in his new placement. The parent requested that the Committee reconvene in ten days. Instead, the district requested a due process hearing seeking a ruling that the student’s removal from the residential setting was appropriate and setting a timeframe for the transition. The parent filed counterclaims alleging that the district committed multiple procedural and substantive violations of the IDEA in trying to develop the student’s 2007 summer program, his 2007-08 IEPs, and his change in placement. Ruling: The hearing officer ruled in favor of the parent. The main issue was whether the district erred in proposing the student’s change in placement prior to developing the student’s IEPs. The record showed that the district had not developed an IEP for the student prior to suggesting his move from the residential setting to the district. According to the hearing officer, there was little consideration of transition, transportation, reintegration, home services, and other important aspects of the student’s program. The student’s assessments were out of date at the time the district proposed the change in placement. In January of 2008, after it requested a due process hearing, the district conducted a psycho-educational assessment concluding that the change would be appropriate. However, the district did not perform other requested assessments in speech and language, assistive technology, physical therapy, and adaptive P.E. An Independent Educational Evaluation (IEE) also was completed but the evaluator did not visit the proposed placement and made no recommendation regarding its appropriateness for the student. According to the hearing officer, the district did not demonstrate that it had developed appropriate IEPs for the student. The district also failed to prove that its proposed

placement offered the student education in the least restrictive environment. Further, the parent presented numerous incidents of procedural violations committed by the district in its effort to remove the student from the residential setting by the 2007-08 school year. Procedural violations included the district’s (1) predetermination that the student be removed from the residential facility, (2) failure to provide the parent written notice of the proposed change in placement, and (3) failure to offer the student’s parent a ten-day recess of the July 2007 ARD meeting prior to filing its request for a due process hearing. Taken as a whole, those procedural violations prevented the student’s parent from meaningfully participating in the development of the child’s IEP and denied the student FAPE. The hearing officer ordered the district to perform appropriate assessments of the student and develop an IEP for the student that offered services in the least restrictive environment. If removal from the residential facility was recommended, the district was to provide a transition plan and the student was to remain in the residential facility until completion of the transition period. Things to remember: Hearing officers can conclude that FAPE was denied based on procedural errors only if those errors are significant. Here, the hearing officer found a number of procedural errors that, taken together, denied FAPE by impeding parental participation.

Eligibility DID THE STUDENT QUALIFY FOR SPECIAL EDUCATION DUE TO HIS ADHD? Case citation: Student v. Houston ISD, Dkt. No. 068-SE-1207 (Hearing Officer Gwendolyn Hill Webb, May 16, 2008). Summary: Prior to December of 2005, the student received special education services from the Houston Independent School District under the “other health impaired” classification due to attention deficit hyperactivity disorder (ADHD). In December of 2005, the student’s ARD Committee determined that he no longer met eligibility requirements for special education. He was dismissed from special education and the parent agreed with the decision. Since the student’s removal from special education, he received accommodations under Section 504 of the Rehabilitation Act of 1978. His Section 504 accommodations included giving positive reinforcement, ignoring minor misbehaviors, repeating instruction, discussing rules and the Code of Conduct, and verbally reminding the student of consequences. In May of 2007, the parent requested a full and individual evaluation (FIE) due to the student’s poor behavior and failing grades in reading. The FIE concluded that the student did not have a speech impairment, learning disability, or emotional


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Special Education, continued disturbance. Based on the evaluation data, the student’s ARD Committee determined that the student was not eligible for special education but would continue to receive Section 504 accommodations. The parent agreed generally but indicated that the student needed support for his ADHD. The student continued to have behavioral problems, despite the Section 504 accommodations. In one week, between March 23, and March 30, 2007, the student had four behavioral incidents. He also experienced 15 separate incidents between October of 2007, and February of 2008. The ARD Committee met in October of 2007, and January of 2008, to consider placement in special education. However, at each of those meetings, the ARD Committee determined that the student did not qualify for special education services. The parent expressed concerns that the student had exhibited an interest in gangrelated activity and had a fear of being beat up. The ARD Committee ended in disagreement and reconvened in February of 2008. The parent continued to disagree with the district and contended that the student’s disciplinary problems were caused by his ADHD and the district’s failure to accommodate his unique needs. The parent ultimately requested a due process hearing complaining that the district failed to timely assess and identify the student as eligible for special education and failed to conduct a proper FIE. Ruling: The hearing officer rejected each of the parent’s claims. The hearing officer determined that the district timely evaluated the student for all suspected educational disabilities. The student’s classroom difficulties related to ADHD were addressed with § 504 accommodations. Those accommodations

1601 Rio Grande, Ste. 441 Austin, TX 78701

included (1) a transfer to a math class with a strong role model who provided additional educational support before, during and after school; (2) tutoring in math; (3) counseling from the principal regarding behavior incidents; (4) meeting with a gang intervention specialist; and (5) arranging with a parent to pick the student up right after school to avoid involvement with others suspected of gang activity. Despite those accommodations, the record showed that the student rarely attended his math tutorials. The parent did not request assistance from the gang intervention specialist after the first meeting. After being warned and counseled repeatedly against gang-related conduct, the student wrote a paper outlining the rules of a gang, which was a violation of the Student Code of Conduct. As a result, he was assigned to the district’s disciplinary alternative education program. According to the hearing officer, the parent “excuses the Student’s infractions, rationalizes Student’s improper conduct, and tolerates Student’s interest in and focus on gangs.” The parent claimed that the student’s difficulties were a result of his need for special education services. However, the student’s assessments demonstrated that he was capable of grade level performance or better in the general education setting. His classroom difficulties were adequately addressed through Section 504. According to the hearing officer, the district did not have to tolerate the student’s gang-related activities or view those activities as a manifestation of the student’s ADHD. The parent failed to demonstrate that the student qualified for special education services or that the district otherwise denied the student FAPE.

PRSRT STD U.S. Postage PAI D Denton, TX Permit No. 438


January, 2009