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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

LEGAL DIGEST Volume 26, Number 2

TM

February 2010

A Look inside . . . This month we feature an excellent lead article co-authored by Adrienne Butcher of the Walsh, Anderson law firm, and Jennifer Childress, TSALD editor, about the practicalities of dealing with litigation. We know you will find it helpful. In our Legal Developments we report nine court cases, including four from the 5th Circuit, along with three decisions from the Commissioner’s office, three Attorney General Opinions, and two special education due process hearings. Here are the highlights. Governance

Suppose that one of those cameras at a traffic intersection takes a picture of a school district vehicle running a red light. Who pays the ticket: the district or the driver? That is the issue in the background of Attorney General Opinion GA-0747 (page 12). The A.G. does not directly answer that question, but does opine about the constitutionality of the district paying the fine. Our Governance section also addresses the latest twist on the long-running litigation in Waller ISD over a bond election and the use of proceeds. See Jackson v. Waller ISD, (page 11). Labor and Employment

Thomas v. Norris (page 14) is a lengthy opinion addressing numerous allegations by the assistant principal who was demoted to a teaching position. Many of the issues were dismissed on procedural grounds, but the discussion of due process and property interests as applied to educator contracts is substantive and illuminating. If the Commissioner does not issue a decision in a nonrenewal appeal within 30 days, he loses jurisdiction of the case and the decision of the school board is automatically affirmed. So it says in Texas Education Code 21.304(b). This rarely cited provision of the Texas Education Code came into play in Thomas v. Fort Bend ISD (page 15), where the Commissioner missed the 30-day deadline by almost three years.

Also . . . • So, You’ve Been Sued: Now What? A School Administrator’s Guide To The Litigation Process (Adrienne Butcher and Jennifer Childress) • Law Dawg (Jim Walsh)

In these difficult financial times, many school districts may find it necessary to consider a reduction in force (RIF). The latest pronouncement from the Commissioner on the RIF process is in Arredondo v. Brooks County ISD, (page 17). Liability

The standards for qualified immunity are addressed in Guillory v. Thomas, (page 18) in the context of a teacher-to-student sexual misconduct case. The court did not grant qualified immunity to the superintendent at this early stage of the litigation due to the existence of unresolved fact issues that had the potential to lead to liability. Religion

Just in time for the holiday season, the 5th Circuit issued a decision in Morgan v. Plano ISD (page 21) about the distribution of religious materials by students. Special Education

The Dawg’s Award for Most Important Case of the Month goes to El Paso ISD v. R.R. (page 22) in which the 5th Circuit sends a strong message about the importance of cooperative dispute resolution in special education matters. The court concluded that the parent and attorney “walked out of the resolution meeting, continued litigation and unreasonably protracted the resolution of this dispute for over three years.” For further information about this case WEB and its implications, go to our website, www.legaldigest.com and find our interview with attorney Joe Tanguma, who argued the case for the school district at the 5 th Circuit. EXCLUSIVE!

And of course, you will find the Dawg in his usual position in the middle of the newsletter. Enjoy.

• Legal Developments • Legal Digest – TCASE Conference on Special Education Law Registration Form • Fixing Special Education Workshop Registration Form


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SO, YOU’VE BEEN SUED: NOW WHAT? A SCHOOL ADMINISTRATOR’S GUIDE TO THE LITIGATION PROCESS by Adrienne Butcher Attorney at Law Walsh, Anderson, Brown, Gallegos & Green, P.C. and Jennifer Childress Editor, Legal Digest Austin, Texas It was a difficult termination or nonrenewal, but at last it is over. The employee is gone and the matter has finally been put to rest. Or perhaps it was a parent who filed a grievance over discipline you handed out to her son or a grievance complaining about the cheerleader tryout procedure. The Board of Trustees ultimately denied the grievance at Level III, and the file now can be closed for good…or can it?

After a few months or a year have passed, you are suddenly handed some documents that indicate you have been sued. Generally, a person has two years in which to file a personal injury lawsuit and even longer for other types of claims.1 There may or may not have been any warning that a lawsuit was coming. Of course, the first thing you should do when served with a lawsuit is contact the school district’s legal department or attorney. As you will learn, civil litigation is governed by detailed procedural rules. This Article is designed to provide administrators a basic understanding of the litigation process and some guidance on how to best work with your attorney as you navigate through that process.2 Texas School Administrators’ Legal Digest ISSN 0882 – 021X Published 10 times a year Individual subscription........................................................................ $140 Copyright © 2010. 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: David Backus – Underwood Law Firm Lisa Brown – Thompson & Horton, L.L.P. Sarah Orman – Attorney at Law Laura Rodriguez – Walsh, Anderson, Brown, Gallegos & Green, P.C. David Thompson – UTSA Jan Watson – Walsh, Anderson, Brown, Gallegos & Green, 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

SOMEONE JUST HANDED ME “SERVICE OF PROCESS.” WHAT DO I DO? “Service of process” is a legal procedure designed to provide a defendant notice that it is being sued. It collectively refers to legal documents delivered to you by an officer of the court. These documents may include a citation or summons from the court, a copy of the plaintiff’s lawsuit, and other legal notices. Service of process is very important because, in addition to providing you notice of the plaintiff’s lawsuit, it starts the clock for your deadline to file a written answer to the lawsuit. A timely answer is necessary to avoid a default judgment against you.3

The rules that govern service of process must be strictly followed to give the court jurisdiction over the defendant. When the rules are not properly followed, service is not valid, and your attorney may file a motion to quash the service of process. However, if granted, motions to quash will generally only buy you additional time to respond to the lawsuit and will not protect you from being sued, except for cases in which the timing of service is critical. School districts have some unique requirements for service of process. While district employees named as defendants can be served personally, whether sued in their individual or official capacities, there are different requirements for service on the district itself as an entity. Under Texas law,4 proper service on a school district is through the president of its school board or its superintendent. Service on other persons, such as business managers, superintendents’ secretaries, and even other administrators who accept the service of process may not be valid for service on a district.5 Therefore, it is important to note the time and individual who was served with process and to provide your attorney this information in case it is relevant to the defense.

If you are named as a defendant, your attorneys and you will determine whether the lawsuit has named you in your “official capacity” or your “individual capacity.” Official capacity claims are brought against the school district only and do not seek to hold you personally liable. Claims brought against you in your “individual capacity,” on the other hand, are claims against you personally and seek damages or other relief from you individually.


3 What to do after service of process: • Contact your attorney. Notify your attorney immediately so that he or she can evaluate the case and determine whether time-sensitive action is necessary. Your attorney can also provide important advice on issues that may arise, such as statements district personnel may make to governmental agencies regarding employment disputes. Statements to governmental agencies are discoverable to other parties and accessible to the general public under the Texas Public Information Act and the federal Freedom of Information Act, so consult your attorney before making them. •

Notify your insurer. Notify your insurance provider that you have been sued (or whenever you have any demand for monetary damages). Some insurers have restrictions on how you may respond to a lawsuit—for example, the type of statements you may make—so make sure to review your policy carefully.

Save all potentially relevant documents. You will need to put a litigation hold on all records that could pertain to the case so they are not destroyed, even if destruction is normally permitted under the district’s retention policy. Records destroyed during pending litigation can result in a spoliation instruction, in which the judge instructs the jury that the district destroyed relevant documents and that the jury may thus infer that the destroyed documents were damaging to the district.

THE PRELIMINARY STAGES OF LITIGATION Now that you’ve been served, you are entering the prediscovery, initial stages of litigation. At this point, your attorney will file responsive pleadings and address any technical issues with the pleadings, including requesting the plaintiff to more clearly articulate his or her claims or clarify the damages he or she is seeking, if clarification is necessary. In some cases, your attorney will also file a plea to the jurisdiction or a motion to dismiss, which are addressed in further detail in the section regarding dispositive motions. Your attorney will begin gathering information about the case, including interviewing potential witnesses, visiting relevant sites, and reviewing documents, and will ask you to begin gathering documents for the discovery stage of litigation that follows. NAVIGATING THE DISCOVERY WATERS Now that the preliminary pleadings matters have been addressed, the attorneys will begin turning their attention to a process known as “discovery.” Discovery involves the exchange of information and evidence between the parties. While your attorney is investigating the case and strategizing on your behalf, the plaintiff’s attorney will also seek documents and information that might help present the plaintiff’s case. The parties are required by the court’s procedural rules to disclose information relevant to the issues being raised in the litigation. There are a number of different forms of discovery, including

requests for disclosure, admissions, and production of documents; interrogatories; depositions; and motions for mental or physical examinations, among others. The response deadlines for most written discovery requests are relatively short and are generally 30 days from service of the request. As a party, you must timely respond or state your objection to discovery requests. If you do not, you risk defending against a motion to compel discovery by the plaintiff and possible sanctions against you by the court. Additionally, if you do not timely object to any specific request for discovery, your objection may be waived for purposes of the litigation. Waivers can include privileged information, which can be very harmful to the case. Because of the potentially damaging consequences of failing to properly respond to discovery requests, make sure you thoroughly and promptly follow your attorney’s instructions, whether they are to retrieve documents, review and respond to written discovery requests, or perform other tasks needed to properly respond to discovery requests. A short description of the discovery tools that litigators typically use is provided below:

Requests for disclosure are written requests that require the parties to provide information relevant to the issues raised in the lawsuit.6 The disclosures may include (1) the correct names and contact information of the parties or potential parties to the suit, (2) the legal theories and general factual bases of the claims or defenses, (3) the amount and method for calculating damages, (4) information concerning other persons having knowledge of facts relevant to the case, (5) information concerning expert witnesses, (6) insurance agreements that may apply, (7) applicable settlement agreements, (8) existing witness statements, (9) medical records and bills, and (10) contact information of responsible third parties, if any. In state court, you must serve your responses to the plaintiff’s requests for disclosure within 30 days after service of the requests (unless the plaintiff’s attorney serves you with the requests before your answer is due, in which case you have 50 days) or risk discovery sanctions by the court.7 In federal court, your responses are due within 14 days after the parties engage in what is called a Rule 26(f) conference, in which the parties are required to confer about the claims and defenses of the case and submit a written report to the court outlining a proposed discovery plan. However, if you were not served with summons and joined as a defendant until after the Rule 26(f) conference had already occurred, your responses are due within 30 days after you were served with summons.8 Interrogatories are written questions that the parties pose to one another about the case.9 Interrogatories may inquire about the opposing party’s specific legal or factual contentions. They may ask the responding party to state its legal theories and to describe, in general, the factual bases for the party’s claims or defenses. However, interrogatories may not be used to require the responding party to reveal all of its available proof or the proof the party intends to offer at trial. Like requests for production, your interrogatory responses are due within 30 days after service by the plaintiff’s attorney (or, if applicable in state court, within 50 days).10

Requests for Admissions are written requests that the other party admit the truth of any matter within the scope


4 of discovery.11 Such admissions may include statements of opinions, statements of fact, or statements concerning the application of law to fact. The plaintiff’s attorney may also ask for admissions regarding the genuineness of documents that he or she wishes to authenticate for court. Any admission made under these rules is considered conclusively established for the purposes of the pending action.12 If a party admits a fact or states an opinion in response to a request for admission, that answer can be used as evidence for the parties’ motions or during the trial of the case.

A word of caution: If a party does not timely respond to a request for admission, the request at issue will be deemed admitted against that party. This can be particularly damaging if, for example, the request that is deemed admitted is an admission of liability or other critical facts. A court will allow a party to withdraw or amend such an admission only if (1) the party shows good cause for withdrawing or amending it, (2) the opposing party will not be unduly prejudiced with the withdrawal or amendment, and (3) the “merits of the action will be subserved by permitting the party to amend or withdraw the admission.”13 Requests for admissions are due within 30 days after service by the plaintiff’s attorney (or, if applicable in state court, within 50 days).14

Requests for Production generally ask for the production or inspection of documents, property, or items to be tested or sampled.15 The request has to be specific and must specify a reasonable time and place for the production.16 Barring any objection to the request, the responding party must produce the requested documents or items within the person’s possession, custody, or control and provide the requesting party a reasonable opportunity to inspect the documents or items. Responding to requests for production can impose some financial costs and scheduling burdens on the district; however, these are necessary costs of litigation and, like Public Information Act requests, generally cannot be avoided. The Texas Rules of Civil Procedure state that, unless otherwise ordered by the court for good cause, “the expense of producing items will be borne by the responding party and the expense of inspecting, sampling, testing, photographing, and copying items produced will be borne by the requesting party.”17 In the event of excessive costs of responding to requests for production, your attorney can try to work with the plaintiff’s attorney or seek the court’s assistance in modifying the request to reduce costs. Like most other discovery tools, requests for production are due within 30 days after service by the plaintiff’s attorney (or, if applicable in state court, within 50 days).18 THE PLAINTIFF’S ATTORNEY WANTS TO TAKE MY DEPOSITION. WHAT WILL THAT INVOLVE? A deposition is a common and important discovery tool in which a witness (the “deponent”) provides sworn testimony in response to questions about his or her knowledge of facts that may be relevant to a case.19 In a deposition, the attorneys on both sides meet with the deponent and a court reporter, who swears in the deponent and records all questions and testimony word-for-word in the deposition transcript. In some cases and upon proper notice, the deposition may be videotaped, and

other persons may attend (for example, other parties or their representatives). The deponent may also be asked to bring documents to the deposition. The attorneys then take turns asking the deponent questions and may use the transcript and any documents produced for or created during the deposition in the parties’ motions or at trial.

Why testify before trial? Deposition testimony serves several valuable purposes. First, it gives the parties a chance to discover how the deponent will answer questions, which helps with case evaluation, settlement negotiation, and trial preparation. Second, the parties may use the deposition transcript as evidence to include with motions they file with the court. For example, in a summary judgment or pre-trial motion, the court may consider deposition transcripts when determining whether the plaintiff’s case is based on a genuine issue of material fact that must be decided at trial. If it is not, the trial court can grant summary judgment in favor of the district and dismiss the case. Finally, the parties can use the deposition transcript at trial in lieu of live testimony if the deponent is not available for trial or, if the deponent does testify as a trial witness but changes his or her testimony, to impeach (i.e., discredit) that witness.

Courts generally leave it to the parties to work together to schedule depositions, and your attorney may work with you and the plaintiff’s attorney to schedule your deposition for a mutually agreed date, time, and place. However, this is a professional courtesy, and not all cases will go smoothly. Plaintiffs can (and do) serve defendants with notices of deposition without prior agreement if the notice is served a “reasonable time” before the deposition.20 What constitutes a “reasonable time” can be very short and can create difficult scheduling conflicts. In such cases, it is critical to contact your attorney as soon as you receive a notice of deposition. If your attorney files a motion to quash the notice of deposition within three business days after you were served with notice, the court must rule on the motion to quash before the deposition can proceed, buying you extra time.21 Depositions, like all else in litigation, are governed by a set of legal rules. For example, the rules limit the time your deposition may be taken in a day or altogether. In Texas cases, depositions are limited to a total of six hours (excluding breaks) for each deponent,22 and in federal cases, to one seven-hour day.23 However, you must remain available for your deposition from the time it is scheduled to begin until it is begun and completed.24 This can extend a deposition to more than one day if, for example, delays prevent the deposition from concluding on the day it began.

During the deposition, the attorneys may object to questions and testimony. Under the rules, you need to answer all questions (to the best of your ability, including stating that you do not know the answer when you do not), even if your attorney has objected.25 However, the rules prohibit questions that are abusive, repetitive, seek privileged information, or are otherwise improper. If the plaintiff’s attorney engages in these tactics, your attorney will object and instruct you not to answer. In this case only, you will not answer the question. If the conduct of the plaintiff’s attorney persists, your attorney may also call


5 the court for a ruling or end the deposition. In such a case, which is relatively rare, follow your attorney’s instructions no matter how the plaintiff’s attorney reacts. Your attorney will take the matter up later with the court, if necessary.

Each of the forms of discovery described above is governed by specific procedural rules and has strict timelines to which parties must adhere or risk sanction by the court.26 For example, the court may not allow a key witness to testify if he or she was not timely disclosed to the other party.27 Under Texas law, the court will provide the parties with a discovery control plan, which limits the type of discovery allowed and the period of time within which the parties can make discovery requests.28 The attorneys on the case will know which discovery control plan governs the lawsuit and will proceed accordingly. It is important for you to communicate with your attorney about relevant information, witnesses, and documents so that your attorney is prepared to properly respond to the discovery. When in doubt about the relevance of information responsive to a discovery request, err on the side of caution and provide all information to your attorney, who will determine whether the information in question is discoverable. This applies even if you find information after you already served your discovery responses on the plaintiff’s attorney. The Texas and federal rules require complete responses to discovery requests and, under certain circumstances, allow parties to supplement their responses in the event that new information relevant to the case becomes available.29 WHAT IS A SUBPOENA, AND WHAT CAN I DO ABOUT IT? A subpoena is a court document that commands you to do one or both of the following: (1) appear to testify at a specified time and place or (2) produce documents.30 These are frequently served not only on administrators but on teachers, counselors, and other district personnel. In some cases, subpoenas may seek material protected by the Family Educational Rights and Privacy Act (FERPA), and the district must notify students and parents before complying with the subpoena. Ask your attorney about FERPA compliance any time you produce records identifying students.

The person who is served with a subpoena must comply with it or file with the court a motion to quash the subpoena, for a protective order from the court against compliance, or both. Failure to comply with a subpoena without an adequate excuse authorizes the court to find you in contempt, which can result in your being subject to a fine and/or confinement in jail.31 To be valid, subpoenas must both be properly issued (authorized by the court) and served (delivered) on the person who is commanded to testify or produce documents. Subpoenas may be challenged through a motion to quash for failure to comply with strict technical requirements, such as provision of witness fees or proper identification of the person or records subpoenaed. The rules also govern how far a witness can be required to travel to appear or produce documents under a subpoena. In some cases, a subpoena can be stayed or halted automatically if you file a motion for protective order within three

days of service of the subpoena. In that case, you will not risk contempt for failing to comply with the notice. Because time often is of the essence, immediately notify and provide your attorney a copy of all subpoenas so your attorney has time to review them. UNDERSTANDING THE ROLE OF DISPOSITIVE MOTIONS At some point in the litigation process, your attorney probably will file one or more dispositive motions to try to persuade the court to dismiss the case before trial. The following is a brief description of the types of dispositive motions commonly used in state and federal courts: 1. Plea to the Jurisdiction This is a state-court challenge to the court’s ability to hear a case. The general rule is that school districts, as local governmental entities, are immune from suit.32 A court has no subject-matter jurisdiction over a case (ability to hear it) in which the district has immunity, and the court must dismiss the case as soon as it discovers the lack of jurisdiction.33 However, school districts are not immune from every kind of claim. A plaintiff can sue a district if the Texas legislature has created a clear and express “waiver” of its immunity for that particular claim. The Texas legislature has created several such waivers, including, but not limited to, suits for breach of contract that a district entered with a private party or for a district employee’s negligent use or operation of a motor vehicle during the course and scope of his or her employment. When a plaintiff decides to sue the district, he or she must demonstrate in the pleadings that the court has jurisdiction. In a plea to the jurisdiction, the defendant challenges the plaintiff’s efforts to establish the court’s jurisdiction. Although generally, evidence regarding the merits (substance) of the case is not allowed, the trial court can, and indeed must, consider evidence that sheds light on the jurisdictional issue.34 Your participation in a plea to the jurisdiction will likely be small and involve working with your attorney to obtain documents that pertain to jurisdictional issues, such as the district’s grievance procedures to determine, for example, whether the plaintiff first exhausted administrative remedies before filing suit. If you are able to show that the plaintiff did not exhaust required administrative remedies, then the court may decide that it lacks jurisdiction over the case.

2. Motion to Dismiss This type of motion is used in federal court and is often filed relatively early in the case to show that the court lacks jurisdiction over the case or that the plaintiff failed to state a case upon which the court can grant relief. The latter is essentially a pleadings defect, and the court will usually allow the plaintiff an opportunity to re-plead or restate the allegations in the case before dismissing it. If the defect cannot be cured—for example, the plaintiff sued the district for a type of claim that does not fall under an exception to immunity—the court may grant the motion to dismiss, saving the district the


6 time and cost of conducting discovery and defending the case through trial. As with a plea to the jurisdiction, your role will likely be limited to helping your attorney obtain documents relevant to the bases for dismissal and will not involve the greater collection of evidence that is typical of a summary judgment motion. 3. Motion for Summary Judgment

A summary judgment motion is used in both state and federal court. If applicable, your attorney will file this motion to persuade the court that the plaintiff has not established a genuine issue of material fact on one or more of the elements that he or she must prove to win. Unlike a plea to the jurisdiction or a federal motion to dismiss, this type of motion almost always requires several evidentiary attachments to support its arguments for dismissal, ranging from witnesses’ affidavits to public records, photographs, district records, deposition transcripts, and responses to discovery, such as disclosed documents, interrogatories, and requests for admission. For this reason, it is typically filed after the discovery stage is over or substantially complete. You can assist your attorney in filing the most effective summary judgment motion by ensuring that all relevant information has been provided, including names of potential witnesses and notes, documents, and other items that appear even tangentially related to the case. The trial court may grant a summary judgment motion on one or more of the claims raised in the case. If the court grants the motion, it will result in a pre-trial judgment on that claim, meaning that that portion of the case is dismissed without a trial.

MEDIATION AND SETTLEMENT Throughout the litigation, the attorneys will be considering whether the case is suitable for settlement. Settlement is not an admission of liability; rather, it is often a strategy that helps avoid the uncertainty, time, and expense of a trial and the commensurate risk of an adverse judgment, which can occur even with an “airtight” case. Courts, on their own, also can order the parties to try to mediate or settle the matter before trial. Texas rules explicitly encourage the peaceable resolution of disputes.35 In fact, many courts even require parties to mediate before trial. A mediation involves an impartial person, the mediator, who facilitates communication between parties. The process is designed “to promote reconciliation, settlement, or understanding” among the parties.36 In a typical mediation, the parties and their representatives will appear before the mediator. Prior to the mediation session, each side will have briefed the mediator on the main issues involved in the case. At the mediation, the mediator first will explain the process and allow the parties to present an opening statement.37 The parties will then adjourn to different rooms. The mediator communicates with each side to discuss the issues that need to be resolved and facilitate communication between the parties. The purpose of the process is for the parties to come together and work toward a mutually agreeable resolution to the conflict.

Mediators may not impose their own judgment on the issues for that of the parties. A mediator may assist or encourage the parties to settle but may not compel or coerce a party into reaching an agreement.38 Further, the mediator is required to keep the communication confidential. Unless expressly authorized by the disclosing party, the mediator may not disclose to either party information given in confidence by the other party and must at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute.39 Further, unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed by any participant to anyone, including to the court.

If the parties reach a settlement, a written agreement will be drafted and signed by each party. Any written agreement in mediation is enforceable in the same manner as any other written contract.40 Further, the court in its discretion may incorporate the terms of the agreement in its final decree disposing of the case.41 WHAT IF THE CASE GOES TO TRIAL?

If the parties cannot reach a settlement and the trial court does not grant a pre-trial motion for judgment in favor of the defendant, then the case likely will go to trial. The school district’s attorneys and their legal assistants will work closely with all defendants and witnesses to prepare for the trial. They will review witness testimony, as well as organize and prepare all of the relevant evidence for admission at trial. The attorneys also will prepare jury instructions, written objections, and various motions applicable to the trial process.

The trial can be held either before the trial judge (a bench trial) or before a jury (a jury trial). In a bench trial, all argument, testimony, evidence, and objections will be presented to the judge, who will decide all issues in the case. Either a jury or a bench trial can last a single day or several weeks. The length of the trial depends on the number of witnesses needed to testify, the number of issues to be decided, and the trial court’s schedule and ability to control the proceedings.

If you are a defendant or the school district’s designated representative, you probably will be required to sit at your attorney’s table throughout the proceedings. Your demeanor during trial is critical, and you must keep your composure at all times. Jurors in a jury trial are watching everything that occurs and will observe your reactions to testimony, evidence, and the judge’s rulings. If you appear professional, calm, and attentive, you will gain credibility with the jury. Your credibility may influence the outcome of the case, so it is crucial to remain professional at all times. As difficult as it may be at times, you should never roll your eyes, look bored, laugh, or display any open reactions to trial events in front of the judge or jury. These reactions, even if unintentional, can offend jurors and bias them against you. To avoid them, resist exchanging glances with or whispering to your attorneys or colleagues. If


7 communication is absolutely necessary, you may pass a note to your attorney. Otherwise, if the matter is not time-sensitive, it can be discussed during a break.

In a jury trial, the trial begins with picking the jury. This process is known as voir dire.42 During voir dire, a panel of prospective jurors is brought into the courtroom or other room suitable to accommodate a large group of people. The potential jurors will have provided biographical and demographic information relevant to service as a jury member through a court questionnaire. The information may include the person’s (1)  name, sex, race, and age; (2)  residence address and mailing address; (3)  education level, occupation, and place of employment; (4)  marital status and the name, occupation, and place of employment of the person’s spouse; and (5)  citizenship status and county of residence.43 The potential jurors’ answers to the questionnaire will give the parties a better idea about which jury panel members they want to select. The judge will address the jury panel, give the potential jurors an overview of the selection process, and may ask the panel members several questions to determine if they have any preconceived notions about the case or parties involved. The judge will likely also provide the parties’ attorneys an opportunity to ask the prospective jurors questions, and the attorneys will also try to determine whether the jurors have any biases against the parties or claims and defenses at issue. The main goal of the jury selection process is to determine which members of the jury panel will be fair and impartial jurors. The judge may decide to strike, or eliminate, some potential jurors whose responses clearly show they cannot be impartial in the case. This is called a strike for cause. In addition, each party has a predetermined number of peremptory strikes it can make to eliminate potential jurors it believes may not be fair and impartial. However, the reasons for striking a potential juror must be nondiscriminatory of race, gender, and other protected classes.

Once a jury is seated, the trial will begin with basic instructions to the jury from the judge and then will proceed with opening statements. Because the plaintiff has filed the claims at issue and has the burden of proof on his or her claims, the plaintiff will give the first opening statement. The defense will then respond with its opening statement. The parties’ opening statements tell the jury what the case is going to be about, the evidence that the jury will see and hear, and the issues the jury will decide. Opening statements also give the jury its first impressions of the people involved and the legal theories of the case. Once opening statements have concluded, the plaintiff, through counsel, begins presenting his or her case. In so doing, the plaintiff will call witnesses and present evidence to the jury. Once the plaintiff has finished presenting evidence, the defendant often moves for judgment in its favor (a directed verdict), arguing that the plaintiff did not present enough evidence to prove his or her claims. Generally, this is a technical motion made to preserve arguments for appeal, if one is later

necessary. It is important to note that judges are very reluctant to grant these motions except in very rare circumstances, so do not be disappointed if this motion is denied.

If no such motion for directed verdict is made or the motion is not granted, the defense will then have its opportunity to respond to the plaintiff’s case with its own witnesses and evidence. The court may also allow the plaintiff to provide some rebuttal evidence to address any new evidence that comes up during the defendant’s case. The defense may also have an opportunity for rebuttal under certain circumstances.

During the course of the trial, the attorneys will make objections to the testimony and evidence, and the judge will make rulings on those objections. When the objection involves prejudicial or sensitive evidence, the attorneys may approach the judge’s bench and argue there so that the jury cannot hear them. If the matter is highly sensitive, the judge may excuse the jury so that the parties can present more detailed legal argument about the admissibility of the evidence or present the evidence or testimony to the judge for consideration outside of the presence of the jury. These objections are important to “preserve the record” in the event that the case is appealed after the trial. If the attorneys do not vigorously pursue their objections, they will waive them and will not be able to raise those issues in a later appeal. After all of the evidence has been presented, the parties will present closing arguments. In closing arguments, the parties tie together all of the evidence and argue to the jury why the evidence shows they should prevail. As with opening statements, the plaintiff begins closing arguments and is followed by the defendant. The plaintiff is also allowed a brief rebuttal to the defendant’s closing argument if his or her attorneys asked the court to reserve time for rebuttal.

After closing arguments, the judge will prepare the jury instructions and read them to the jury. Even before the trial starts, the attorneys and the trial judge will have begun discussing the jury instructions. Jury instructions set out in detail the legal issues that the jury will decide based on the evidence presented during trial. The instructions will also include the questions that the jury is being asked to decide, which will determine who wins the case. Each party will propose jury instructions and jury questions and make objections to the opposing party’s proposed instructions and questions if the parties disagree. The trial judge ultimately will decide which instructions and questions will be given to the jury at the close of the evidence. Following the instructions, the jury will be taken out of the courtroom to begin their deliberations. Deliberations can take minutes or days. During this process, the jury may be allowed to ask questions of the court, in which case all of the parties will be summoned back to the courtroom to hear the question, make objections, if any, and hear the trial court’s answer. When the jury has followed all of the court’s instructions and has finally answered the jury questions as instructed, the judge will call the parties back to the courtroom to announce the verdict.


8 WE WON! WHEN CAN WE TOAST?

So the trial court granted your pre-trial dispositive motion, or you prevailed at trial. Unfortunately, the celebratory toast may be premature for longer than the champagne will be fresh. The plaintiff may still exercise his or her right to appeal the judgment, and a persistent plaintiff with the means to appeal can keep the case alive for some time. Under Texas law, generally a party may appeal a final judgment by filing a notice of appeal within thirty days of the date the court signed it. This deadline can be extended if the plaintiff files a motion for new trial during the thirty-day period. Once you have passed this period and have not received a notice of appeal, you can cautiously raise your glass. If, on the other hand, you receive the plaintiff’s notice of appeal, a review of the state and federal appellate processes will help you understand what to expect in the appellate stage of litigation: 1. Texas state court appeals

Texas courts are generally arranged in a three-tiered structure. At the top level is the Texas Supreme Court. The middle level consists of the Texas intermediate appellate courts. At the lowest level are the Texas district trial courts.44

Appeals from the Texas district trial courts go to the Texas intermediate appellate courts. There are fourteen Texas intermediate appellate courts, each of which is assigned to hear appeals from specific counties. The intermediate appellate court must consider any civil appeal that the plaintiff files, as long as the plaintiff pays the requisite fees and actively pursues the appeal. After the intermediate appellate court has received the documents filed with the trial court and the trial court’s record of testimony from hearings and trial, if applicable, the briefing by the parties begins. The party appealing the judgment (the appellant) begins by filing a written appellate brief setting out its argument why the trial court’s judgment is wrong. The party that won at trial (the appellee) submits a response brief setting out its argument in support of the trial court’s judgment. The appellant may also submit a reply brief. In certain cases, oral argument also may be heard, requiring the attorneys to go before a panel of appellate judges to argue their points. After the parties brief the case and the appellate court hears their argument, the appellate court sets it for submission, or formal consideration. After submission, the appellate court issues a written opinion deciding the appeal. The opinion may be issued within a few weeks of submission or, more likely, within a few months or even a year or more after the notice of appeal was filed. A party that disagrees with the intermediate appellate court’s disposition of the appeal may then appeal its opinion to the Texas Supreme Court. Unlike the intermediate appellate courts, the Texas Supreme Court has some discretion on which appeals it will consider. An appellant must file a petition for review asking the Texas Supreme Court to consider its appeal. The Texas Supreme Court may decide not to hear the appeal, in which case it will deny or refuse the petition for review. On the other hand, it may decide to take the case and will grant the petition for review. The briefing process is similar to the intermediate appellate court, and it may take the Texas Supreme

Court a year or more to issue its opinion. In some limited cases, an appellant can also appeal from the Texas Supreme Court to the United States Supreme Court. This appeal, also discretionary, is sought through a petition for writ of certiorari. The U.S. Supreme Court receives literally thousands of these petitions every year and denies most. Thus, it is very rare for an appeal to make it to the U.S. Supreme Court. 2. Federal district court appeals

Federal courts have a three-tiered structure similar to the Texas court system. The initial level of appeal for federal cases in Texas is the Fifth Circuit Court of Appeals, which must consider the appeal as long as the plaintiff properly pursues it. Like the Texas appellate courts, the Fifth Circuit can take months or more than a year to issue a written opinion disposing of the appeal. An appeal from the Fifth Circuit goes to the United States Supreme Court through a petition for writ of certiorari, which, as explained above, is very difficult to obtain. WHEN THE JUDGMENT IS ADVERSE

In the unfortunate event of a final judgment against you or the district, your attorney will carefully evaluate and discuss with you the cost, risks, and likelihood of success in pursuing an appeal. The appellate process is the same as described above, with the exception that you will be the appellant rather than the appellee.

A WORD ABOUT RETALIATION

A word of caution about the potential for retaliation claims is in order. If an employee has filed a lawsuit against the district or district personnel, the district will need to proceed very cautiously if any adverse employment action might be taken against that employee. Many discrimination laws have built-in anti-retaliation provisions that protect employees from retaliatory employment actions when the employee files a claim under that statute. For example, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, and national origin. In addition, Title VII prohibits retaliation against an employee who “has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].”45 The Age Discrimination in Employment Act, the Americans with Disabilities Act, and Title IX of the Civil Rights Act contain similar provisions prohibiting retaliation. Thus, be very careful of any negative employment actions, including reprimands, negative performance appraisals, growth plans, suspensions, and the like. All employment actions must have a legitimate, non-retaliatory basis. The need for thorough documentation of any performance issues of an employee who has filed a lawsuit or grievance cannot be overstressed. Also, if a lawsuit, grievance, or any other adversarial proceeding is pending with an employee, you should consult the attorney


9 handling that matter on behalf of the district before taking any adverse employment actions against that employee. Courts will, and often do, allow plaintiffs to amend their lawsuits to add retaliation claims for alleged acts that occurred while a lawsuit is pending. CONCLUSION School districts and school administrators can be sued for a multitude of reasons, whether over a student discipline matter, an employment issue, a parent complaint, a contract dispute, an injury to a student or employee, or a variety of other incidents that are part and parcel of running a school district. The litigation process can be a daunting undertaking when you are unfamiliar with all of the steps involved. The lawsuit may, and often does, take months or even years to resolve. The school district’s attorneys, however, will work with you and advise you at every step of the process. To help your attorneys most effectively advocate for you, communicate well with them, promptly notify them of any information or documentation relevant to the case, and know that even if it seems interminable, the matter ultimately will be resolved. Endnotes

1. Tex. Civ. Prac. & Rem. Code Ann., Title 2, Ch. 16, §§ 16.002, 16.003. There are exceptions to the two-year limitations period for other types of claims, such as libel, slander, breach of contract, and fraud, among others. See Tex. Civ. Prac. & Rem. Code Ann., Ch. 16. Federal claims for constitutional or other statutory violations, brought under 42 U.S.C. § 1983 also have a two-year statute of limitations. Other federal statutory claims, such as discrimination claims under Title VII of the Civil Rights Act of 1964, have their own limitations periods and exhaustion requirements. 2. This Article is presented from the perspective of the defendant and focuses on the Texas state rules of procedure in civil court. When applicable, corresponding federal rules will be included in endnotes. 3. State and federal rules set deadlines for defendants to file an answer after service of process. In Texas cases, the answer is due by ten in the morning on the Monday twenty days following personal service. In federal cases, the answer is due twenty days after being served with process or longer if you waived service. The short time period underscores the need to quickly notify counsel following service. 4. This includes federal district courts in Texas, which follow Texas rules for service of process on school districts. 5. See Tex. Civ. Prac. & Rem. Code Ann. § 17.024(c). Although section 17.024(c) states that a district “may” be served through its board president or superintendent, similar cases have considered it as mandatory. See City of Mesquite v. Bellingar, 701 S.W.2d 335 (Tex. App.—Dallas 1985, no writ); see also Skaggs v. City of Kellar, Tex., 880 S.W.2d 264 (Tex. App.—Fort Worth 1994, writ denied). 6. Tex. R. Civ. P. 194. 7. Tex. R. Civ. P. 194.3. 8. Fed. R. Civ. P. 26(a)(1)(C), (D). 9. Tex. R. Civ. P. 197. 10. Tex. R. Civ. P. 197.2(a); Fed. R. Civ. P. 33(b)(2). 11. Tex. R. Civ. P. 198. 12. Tex. R. Civ. P. 198.3. 13. Tex. R. Civ. P. 198.3.

14. Tex. R. Civ. P. 198.2(a); Fed. R. Civ. P. 36(a)(3). 15. Tex. R. Civ. P. 196. 16. If the requesting party will sample or test an item, the request for production must describe the means, manner and procedure for testing or sampling the item. Tex. R. Civ. P. 196.1. 17. Tex. R. Civ. P. 196.6. 18. Tex. R. Civ. P. 196.2(a); Fed. R. Civ. P. 34(b)(2)(A). 19. In federal cases, when the school district as an entity is sued, the plaintiff may take “its” deposition by asking your attorney to designate representatives of the district to testify in one or more designated subject areas. This is known as a Rule 30(d) deposition under the Federal Rules of Civil Procedure. In such a deposition, you are not testifying on your own behalf but in a representative capacity only. Your attorney will discuss your role before you testify. 20. Tex. R. Civ. P. 199.2(a). 21. Tex. R. Civ. P. 199.4. Your attorney may also file a motion for protective order. 22. Tex. R. Civ. P. 199.4(c). 23. Fed. R. Civ. P. 30(d). 24. Tex. R. Civ. P. 199.5(a). Your attorney will, for example, instruct you not to answer questions that call for attorney-client privileged information. 25. Although there is no judge present, the judge can later rule on whether to allow the testimony into evidence if one of the parties tries to use the objectionable part of the transcript as evidence. 26. Tex. R. Civ. P. 215. 27. Tex. R. Civ. P. 193.6; see also Tex. R. Civ. P. 215 for sanctions that may be imposed for failing to comply with the discovery rules. 28. Tex. R. Civ. P. 190. In federal court, the trial judge will issue a scheduling order that may set out the deadlines for discovery. 29. Tex. R. Civ. P. 193.1, 193.5. 30. A subpoena that orders you to produce documents is called a subpoena duces tecum. 31. Tex. R. Civ. P. 176.8(a). 32. While a district’s assertion of a counterclaim against a plaintiff can operate as a waiver of the district’s immunity, the district can seek attorney’s fees and costs without waiving immunity under the Texas Education Code. The court must first find that the plaintiff brought a frivolous claim, however, and such an award is relatively uncommon. 33. A court may also lack jurisdiction over the case for another reason, such as the plaintiff’s failure to exhaust his or her administrative remedies before filing suit. 34. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). 35. Tex. Civ. Prac. & Rem. Code Ann. § 154.002. 36. Tex. Civ. Prac. & Rem. Code Ann. § 154.023. 37. See http://www.txmediator.org/aboutmediation/ for an explanation of the mediation process. 38. Tex. Civ. Prac. & Rem. Code Ann. § 154.053(a). 39. Tex. Civ. Prac. & Rem. Code Ann. § 154.053(b). 40. Tex. Civ. Prac. & Rem. Code Ann. § 154.071.   41. Id. 42. The jury selection process is a highly technical procedure, and its full scope cannot entirely be addressed within this Article. However, when the time comes for jury selection, your attorney can cover the process in more detail and answer any questions you have. 43. Tex. Gov’t Code Ann. § 62.0132. 44. This description has been somewhat simplified and does not include some Texas courts, such as county or small claims courts, that may hear some cases before they are considered by the Texas district trial courts. 45. 42 U.S.C. § 2000e-3.


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LAW DAWG by Jim Walsh Attorney at Law Walsh, Anderson, Brown, Gallegos & Green, P.C. DEAR DAWG:

DEAR SNORT:

Snort here. Rip Snort. Intrepid Reporter, Friend of the Truth and DEFENDER OF THE FIRST AMENDMENT! Dawg, I and my colleagues in the Fourth Estate are perplexed and dismayed to see the gradual erosion of First Amendment rights in our public schools. The public school is where our children learn about our precious freedoms but these days what they read about in their textbooks does not match what they see happening in their personal experience. Back in the day, the First Amendment was honored and protected. Kids wore black armbands to protest an unpopular war. Young people wrote and distributed underground newspapers. Was the Republic shaken to its core? NO! We became an even stronger people, able to honor the dissenting opinion, the courageous loner, the one who marched to the beat of a different drum.

Snort, we are delighted to see you standing up for the First Amendment. We would expect nothing less from a member of your profession. Yes, you are correct—the school officials prevailed in both of these cases. You call it the “Jamfest Case” but we think of it as “The Douchebag Case.” The kids in that case made one crucial mistake: they resorted to vulgarity. The opening line of the blog entry written by the leader of the group was “Jamfest is cancelled due to the douchebags in central office.” It encouraged readers to contact the principal to “piss her off more.”

No more, my friend. I offer you two recent examples of cases where the Heavy Hand of Big Brother crushed the Fragile Flower of Free Speech. One is “the Jamfest Case”: Doninger v. Niehoff, 527 F.3d 41 (2nd Cir. 2008), where a group of activist, freedom loving students organized themselves to take action to protest the school administration’s bungling efforts to deal with Jamfest—an annual popular student fundraising event. These kids followed the example of President Obama and worked as “Community Organizers” to encourage people to contact the school administration about the scheduling of this event. Was anyone harmed? No. Was there any disruption of school events? No. Just kids taking action in a cause they believed in. The kids sent out a mass email to members of the community, and wrote on a blog, encouraging people to get involved in this issue. The school would have none of it. The principal and superintendent crushed the Voice of the Students by punishing the leader of the group. The Jamfest Case: Score it Repression 1—Freedom 0. Then there is a case closer to home: A.M. v. Cash, a 5th Circuit decision reported right here in your publication last month. This one involved two young girls who dared to celebrate their Southern heritage by bringing purses to school depicting the Confederate flag. Not allowed. No sir, the politically correct army lined up its tanks and rolled over these young Freedom Fighters. Now Dawg, your Intrepid Reporter is nothing if not politically correct himself and we understand that some might object to the Confederate flag being displayed in a public school. But some values are more important than hurt feelings. Freedom of speech, for example. We are shocked and amazed to see the 5th Circuit uphold the school on this one. The Confederate Flag Case: Repression 2—Freedom 0. Where is Tinker v. Des Moines when we need it????

This is one of the features of school law that we love. You can be studying an important court opinion, expecting to improve your vocabulary by coming across words like “estoppel” and “dispositive” and phrases like “inextricably intertwined” and “anything herein to the contrary notwithstanding” and then all of a sudden you run into “douchebags.” It’s refreshing. You feel like you are twelve years old again, running home because your mom has called you in for dinner, joyously splashing your feet in puddles of rain as you do. The Second Circuit upheld the school district on this one because the kids expressed themselves in vulgar and offensive terms. Our new Supreme Court justice, Sonia Sotomayor, was one of the judges who upheld the school, thus showing that even so-called liberal, activist, politically correct judges have little tolerance for vulgarity coming from the mouths of children. As for the Confederate flag case, the 5th Circuit acknowledged Tinker, but also noted that the school had had a lot of racial problems in the past, much of it involving the ol’ Stars and Bars. The school officials and their lawyers did a great job of tying all that together, thus convincing the court that there really was a reasonable forecast of serious disruption of school. Lots of other cases involving the Confederate flag go the same way. You should read our interview with Paul Cash. He was the principal at Burleson High School when all that happened and was named as the defendant in the litigation. Go to www.legaldigest.com for our exclusive interview with Mr. Cash, who is now Director of Student Services at Mansfield ISD. WEB EXCLUSIVE!

We think the First Amendment remains intact, Snort—even in our public schools.

I look forward to your reply. SNORT.

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


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LEGAL DEVELOPMENTS GOVERNANCE Discrimination DID THE SCHOOL DISTRICT VIOLATE FEDERAL LAWS BY PROVIDING INADEQUATE FUNDING AND MAINTAINING DILAPIDATED SCHOOL FACILITIES? Editor’s Note: This is a continuation of previous litigation filed by a parent and a taxpayer challenging a school bond election. This case involves a federal challenge to the bond election. An appeal of a state court judgment in favor of the district on the same subject matter was reported in the April 2008 issue of the Legal Digest. This litigation also has been reported in the June 2008 and September 2008 issues of the Legal Digest. Case citation: Jackson v. Waller ISD, 2009 WL 3078489 (S.D. Tex. 2009). Summary: Elaine Jackson, whose children attended Jones Elementary School, a historically black elementary school in Waller Independent School District, and DeWayne Charleston, a registered voter in Waller ISD, brought suit against the district alleging that the elementary school lacked adequate funding and maintained dilapidated facilities that were vestiges of racial segregation in the district. They claimed that the district provided unequal distribution of bond funds to the elementary school resulting in facilities that were inferior to those found elsewhere in the district. According to the plaintiffs, the district’s failure to provide equal educational opportunities to those elementary students violated the Equal Educational Opportunity Act (EEOA) and the equal protection clause. They also claimed that the Texas Expedited Declaratory Judgment Act (EDJA) was unconstitutional because a prior state court judgment under the EDJA that prohibited them from further pursuing their bond election claims, violated their First Amendment free speech rights. Jackson and Charleston also challenged at-large voting to elect school board members and other aspects of recent school board and bond elections. The trial court dismissed the claims stemming from the bond election, but allowed Jackson and Charleston to pursue their unequal funding and election claims. [See, Jackson v. Waller ISD, Dkt. No. H-07-3086 (S.D. Tex. 2008); Texas School Administrators’ Legal Digest, September 2008]. The district, in response, filed a motion seeking judgment in its favor on the EEOA, equal protection, and EDJA claims. The election claims were not discussed in the district’s motion and remained pending before the trial court.

Ruling: The trial court rendered judgment in favor of the district on the EEOA, equal protection, and EDJA claims. Jackson and Charleston claimed that the dilapidated conditions of Jones Elementary School were a vestige of racial segregation in the district. They alleged that the disparate facilities violated the EEOA because the district denied the elementary students equal educational opportunities. The trial court disagreed and observed that the statute is violated if a school district that formerly practiced segregation fails to take steps to remove the vestiges of a “dual system,” defined as one that assigns students to schools on the basis of race or some other impermissible criteria. The record here showed that Jones Elementary formerly was part of a “dual system” in the era of segregation. However, there was no evidence that the district continued to maintain a “dual system” in student assignments. Further, there was no evidence that the district violated the EEOA by continuing to assign students, employ faculty or staff, or transfer students in a way that increased segregation on the basis of race. Jackson and Charleston also failed to demonstrate that the physical condition of a historically black school can form the basis of an EEOA claim. Furthermore, the record showed that the educational practices, resources, personnel, and programs at Jones Elementary were of “good quality, equaling or exceeding the other elementary schools” in the district. The plaintiffs simply failed to establish an EEOA claim. The trial court next considered the plaintiffs’ equal protection claim. Jackson and Charleston alleged that they had been denied equal protection in that the facilities at issue were inferior to those found elsewhere in the district due to discriminatory funding decisions. According to the trial court, to establish an equal protection claim under these circumstances, the plaintiffs would have to demonstrate the district’s spending decisions were not rationally related to any legitimate governmental purpose. The plaintiffs, however, failed to do so. The district demonstrated reasonable justifications for its allocation of bond proceeds. Those decisions were based on an independent demographic study, several citizen committee meetings, and the recommendations of those committees. The trial court concluded that the district’s spending decisions were rationally related to a legitimate governmental purpose and, thus, dismissed the equal protection claims. The trial court, likewise, dismissed the First Amendment challenge to the EDJA. The record showed that the Texas court that first considered the plaintiffs’ lawsuit, issued an order under the EDJA stating that no further action could be taken to challenge the bond election. The plaintiffs failed to demonstrate that the EDJA violated their First Amendment rights. Courts have rejected similar claims in the past. Further, there was no showing that the EDJA prevented them from


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Governance, continued litigating their EEOA, equal protection, or election claims. The EDJA also does not prevent them from challenging future bond elections. The plaintiffs’ constitutional challenge to the EDJA was without merit. The trial court dismissed the EEOA, equal protection, and EDJA claims. The order, however, did not address the plaintiffs’ election claims.

Retirement Systems DID THE LEGISLATURE PROPERLY AUTHORIZE ONE-TIME PAYMENTS TO RETIREES UNDER THE TEXAS TEACHER RETIREMENT SYSTEM AND THE EMPLOYEES RETIREMENT SYSTEM? Case citation: GA-0747 (2009). Summary: The Attorney General recently was asked whether one-time payments by the Legislature were proper under the Teacher Retirement System (TRS) and the Employees Retirement System (ERS). The 81st regular session of the Texas Legislature appropriated funds to the Comptroller of Public Accounts to provide a one-time payment to eligible annuitants of the TRS and the ERS. The money was appropriated under article IX, section 17.13(a) of the General Appropriations Act. The Attorney General was asked whether the Legislature is authorized to create this mechanism of providing a one-time payment to certain retirees. Under the new law, the Comptroller was directed to transfer funds to subaccounts within the TRS and the ERS for one-time payments to retirees. Eligibility for payment to ERS annuitants is restricted to a person who retired from the employee class on or before December 31, 2008, and who is receiving a retirement annuity under certain provisions of chapter 814 of the Government Code. Eligibility for payment to TRS annuitants is restricted to a person who retired on or before December 31, 2008, and is made “[c]ontingent on the passage of Senate Bill 2567, or similar legislation authorizing the payment.” The Attorney General observed that Senate Bill 2567 did not become law, but similar legislation, House Bill 3347, was enacted to provide for the one-time payment. Payments to both classes of annuitants were also contingent “upon the issuance of an Attorney General opinion that indicates the . . . one-time payments are constitutionally and statutorily permissible.” Under the law, if the Attorney General does not provide a conclusive opinion that such one-time payments are constitutionally and statutorily permissible, the money would be transferred to the respective retirement funds. Ruling: The Attorney General concluded that the Legislature was authorized to arrange for one-time payments to eligible retirees. To accomplish such payments, the Legislature may appropriate funds directly to the TRS and the ERS for distribution to retirees of the respective systems. In enacting

§ 17.13 of the General Appropriations Act, the Legislature chose to bypass that method of appropriation. Instead, the Legislature appropriated funds directly to the Comptroller for the purpose of providing payments to the recipients outside of the TRS and ERS trust funds. By utilizing this approach, the Legislature chose to bypass the trustees and therefore prevented the funds from becoming trust funds of the respective retirement systems. According to the Attorney General, that method of appropriation raised questions about whether the payments would violate article III, sections 44 and 53 of the Texas Constitution which prohibit the granting of extra compensation to retirees after service has been performed or after a contract for performance has been entered into. The language of § 17.13 requires a “conclusive opinion that such one-time payments are constitutionally and statutorily permissible.” The Attorney General concluded that the appropriation provision raised questions about compliance with article III, sections 44 and 53 of the Texas Constitution, and thus made it impossible for him to determine whether such payments are legally permissible. Further, the language of § 17.13 requires that “[i]f the attorney general does not provide a conclusive opinion that [the] onetime payments are constitutionally and statutorily permissible,” the “amounts appropriated . . . shall be transferred to” the respective retirement systems. Ultimately, the Attorney General concluded that because he could not conclusively say that such payments “are constitutionally and statutorily permissible,” the relevant appropriated funds must be directed to the Comptroller of Public Accounts for transfer to ERS and TRS as required by § 17.13.

Civil Penalties DOES THE TEXAS CONSTITUTION PROHIBIT A SCHOOL DISTRICT FROM PAYING A CIVIL PENALTY? Case citation: GA-0747 (2009). Summary: On behalf of the College Station Independent School District, the Commissioner of Education asked the Attorney General for an opinion on “the constitutionality of expending district funds to pay a civil fine” that is imposed upon the district pursuant to chapter 707 of the Texas Transportation Code. The district asserted that the payment of civil penalties violates article III, sections 51 and 52(a) of the Texas Constitution. Under chapter 707 of the Transportation Code, a local municipality can implement a photographic traffic signal enforcement system and impose a civil penalty to the owner of a motor vehicle who violates the traffic-control signal.


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Governance, continued For purposes of chapter 707, “ ‘[o]wner of a motor vehicle’ means the owner of a motor vehicle as shown on the motor vehicle registration records of the Texas Department of Motor Vehicles or the analogous department or agency of another state or country.” Under chapter 707, the owner of a motor vehicle that was operated in violation of the instructions of that traffic-control signal may be held liable for that violation even if the owner was not operating the motor vehicle at the time of the violation. However, any local ordinance adopted pursuant to chapter 707 must allow a motor vehicle owner the opportunity to contest the imposition of the civil penalty in an administrative adjudication hearing. In this case, the City of College Station implemented a photographic traffic signal enforcement system, also known as a red light camera system, and adopted a corresponding enforcement ordinance pursuant to chapter 707. The district was concerned about a scenario in which a district employee, driving a district-owned vehicle, improperly proceeds through a red light monitored by the city’s red light camera system resulting in a fine against the district. The district contended that it may not pay the civil penalty due to the limitations found in article III, sections 51 and 52(a) of the Texas Constitution. Article III, section 52(a) of the Texas Constitution prohibits the Legislature from authorizing any political subdivision of the state “to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation.” Similarly, article III, section 51 states that the “Legislature shall have no power to make any grant or authorize the making of any grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever.” The purpose of these provisions is to prevent the gratuitous payment of public funds to any individual, corporation, or purpose whatsoever. Ruling: The Attorney General concluded that if a governmental entity is liable for an obligation, then the payment of that obligation is not an unconstitutional gift or grant under article III, sections 51 and 52(a) of the Texas Constitution. Thus, a court likely would find that a governmental entity’s payment of a civil penalty for which the entity is liable would not violate article III, sections 51 and 52(a). According to the Attorney General, the plain language of chapter 707 of the Texas Transportation Code and the City’s Code of Ordinances provides that the district, as the motor vehicle owner, is liable for the civil penalty imposed under those provisions. It is presumed that duly-enacted statutes and city ordinances, such as those at issue here, are constitutional and valid. Therefore, unless the district establishes that it is not liable, its payment of the civil penalty will not contravene article III, sections 51 and 52(a). If the district does establish that it is not liable, however, article III, sections 51 and 52(a) may prohibit it from paying the penalty unless the payment accomplishes an authorized public purpose of the district. Further, it would be for the district to determine in the first

instance whether paying the civil penalty would serve a public purpose of the district. Things to Remember: The next question that will come up is if the school district that has to pay the ticket can turn around and require reimbursement from the driver who ran the red light. The school district here noted that some governmental units had adopted policies to require such reimbursement but that “there may be legal impediments to adopting such a policy.” The A.G. chose not to address the legality of such policies, so school districts should consult counsel about this.

Trustees DID EDUCATION CODE § 11.063 BAR THE FORMER BOARD MEMBER FROM BEING PLACED AT THE SCHOOL DISTRICT BY A THIRD-PARTY EMPLOYER? Case citation: GA-0749 (2009). Summary: The Commissioner of Education recently asked the Attorney General to determine whether Education Code § 11.063 prohibited a former Red Oak ISD board trustee from being placed at the school district by a third-party employer “before the first anniversary of the date the trustee’s membership on the board ended.” Education Code § 11.063 provides that “[a] trustee of an independent school district may not accept employment with that school district until the first anniversary of the date the trustee’s membership on the board ends.” In this case, the trustee resigned from the Red Oak ISD board of trustees and was employed by a third party that contracted with the district for staffing purposes. Ruling: The Attorney General observed that the answer to this question depended on the facts of the relationship among the district, the third-party company, and the former trustee. The Attorney General held, however, that he was not authorized to resolve fact questions, and thus could not give a definitive answer to the Commissioner’s question. Instead, the Attorney General generally advised the Commissioner about the circumstances under which section 11.063 applies. According to the Attorney General, in reaching a determination as to whether a company’s placement of a former trustee at the district prior to the first anniversary of the date the trustee’s membership on the board ended would violate section 11.063, a court would likely examine the relationship between the parties in order to determine whether the trustee was actually employed by the school district or the third party. If all the relevant facts, such as contract terms, control and supervision, and source of payment, showed that an individual was employed by a third-party company and not by the school district, a court likely would conclude that his employment would not be subject to the restriction in Education Code § 11.063,


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Governance, continued even though the private company assigned him to perform services for the school district. If, however, the relevant facts demonstrated that the former trustee was employed by the school district, § 11.063 would bar him from that employment with the school district until the first anniversary of the date his membership on the board ended.

LABOR AND EMPLOYMENT Discrimination DID THE EMPLOYEE RAISE VALID DISCRIMINATION AND RETALIATION CLAIMS? Case citation: Thomas v. Norris, 2009 WL 3856920 (E.D. Tex. 2009). Summary: Even Thomas was employed by the Beaumont Independent School District as a middle school assistant principal during the 2005-06 school year, when a parent of special education student complained that the child had not been receiving appropriate services. Thomas alleged that he asked the principal to discuss the matter with the parent. The principal allegedly declined to do so and later physically threatened Thomas concerning the matter. Thomas reported his allegation concerning the principal’s conduct to the superintendent. Meanwhile, the principal also complained about Thomas’s behavior. As a result, Thomas received a letter stating that if he did not follow the principal’s directives he could be transferred to a teaching position. Shortly thereafter, Thomas went on temporary disability leave for post-traumatic stress disorder. His leave began in October of 2005, and continued until late April or early May of 2006. Meanwhile, Thomas filed a grievance over the incident with the principal and the resulting reprimand but his grievance was denied at all levels. In January of 2006, while the grievances were pending and Thomas remained on leave, the district transferred Thomas to an elementary school. The district cited Thomas’s “numerous incidents of conflicts with staff and campus administration” in support of the transfer. Then, in March of 2006, Thomas was informed that he had exceeded the number of days available under the district’s temporary disability leave policy. As a result, his position was filled by someone else but he was promised the first available job for which he qualified, if he provided a written release to return to work by his physician. Thomas returned to work as an elementary assistant principal briefly during the summer of 2006, but again went on disability leave. The following school year, while on leave, he was transferred to a middle school. His classification as assistant principal and rate of pay remained the same.

Thomas eventually complained about his treatment to the Texas Education Agency and the school district’s lawyer. He also contacted the Equal Employment Opportunity Commission (EEOC) but did not file a formal EEOC charge of discrimination. In January of 2007, while Thomas remained on disability leave, the district transferred Thomas again and demoted him in rank and pay from an assistant principal to a teacher. According to the district, the action was taken because Thomas’s temporary certification to serve as an assistant principal had expired on that day. In August of 2007, Thomas returned to work as a teacher. Thomas, proceeding without the assistance of legal counsel, also filed suit against the school district and a number of school district officials. He brought claims under the federal Whistleblower Protection Act, Title VII of the Civil Rights Act of 1964, the First and Fourteenth Amendments of the United States Constitution, and the Americans with Disabilities Act (ADA). The defendants requested dismissal of each of Thomas’s claims. Ruling: The trial court granted the defendants’ request for dismissal of each of Thomas’s claims. Thomas’s claims under the federal Whistleblower Protection Act were without merit. The Act prohibits adverse employment actions against a federal employee who discloses information that he “reasonably believes evidences a violation of any law or actions that pose a substantial and specific danger to the public health or safety.” The Act requires plaintiffs to exhaust administrative remedies through the Office of Special Counsel and the Merit Systems Protection Board before filing suit. Thomas’s federal whistleblower claims failed because Thomas was not a federal employee and because he had not exhausted administrative remedies before filing suit. Thomas also claimed that the defendants violated Title VII by subjecting him to discrimination and a hostile work environment for engaging in protected activity of reporting and complaining about discrimination. The trial court observed that Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin. A precondition to filing a Title VII suit in federal court is exhaustion of administrative remedies by filing a charge of discrimination with the EEOC. Thomas never filed an EEOC charge of discrimination. He also failed to show that the defendants’ actions were taken on account of Thomas’s race, color, sex, religion, or national origin. His Title VII claims, therefore, were without merit. The ADA also required him to exhaust administrative remedies through the EEOC. His failure to file a charge of discrimination also rendered his ADA claim without merit. The trial court, likewise, dismissed Thomas’s due process claims based on his various reassignments and transfers. First, Thomas did not have a protected property interest in his work assignments. Thomas’s employment contract specifically stated that he was subject to assignment and reassignment of his duties. Thus, he did not have a protected property interest in his work assignment as an assistant principal. Second, the trial court observed that “once a teacher’s certification validly terminates, the school board may, without a hearing, terminate


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Labor and Employment, continued the teacher notwithstanding that her fixed term contract has not expired.” The record established that Thomas was demoted to teacher because his certification lapsed. He, thus, could not establish a due process violation based on his demotion. Thomas’s procedural due process claims also failed because the district demonstrated that it provided him with due process – notice and an opportunity to be heard. The record showed that Thomas was given notice of his employment actions and had an opportunity to file grievances but in most cases, chose not to do so. The trial court also dismissed Thomas’s substantive due process claim, which required him to demonstrate a property interest and an arbitrary termination of that interest by the employer. Here, Thomas was not terminated but demoted to teacher because his certification as an assistant principal lapsed. According to the trial court, the district’s decision was “rationally related to the legitimate government interest of complying with applicable Texas educational laws.” Thomas failed to establish a substantive due process claim. Thomas’s First Amendment retaliation claim also was without merit. To establish retaliation under the First Amendment, Thomas had to prove that (1) he suffered an adverse employment action, (2) his speech involved a matter of public concern, (3) his interest in commenting on the matter of public concern outweighed the defendant’s interest in promoting efficiency. In this case, the trial court concluded that since all of Thomas’s alleged speech involved internal employment disagreements with district personnel, his speech was not brought as a citizen on matters of public concern. Further, Thomas also failed to demonstrate that any of his alleged speech was the reason for his ultimate demotion to teacher – as opposed to the fact that his administrator certification had lapsed. Thomas’s speech, therefore, was not protected by the First Amendment. The trial court dismissed each of Thomas’s claims and rendered judgment in favor of the district. Things to Remember: The most informative part of this opinion for students of school law is the discussion of due process and property rights. The court relied on the standard “assign and reassign” language in the contract to conclude that the man had no property interest in serving as an assistant principal. Thus, the demotion from A.P. to teacher did not require due process. The reduction in salary would normally require due process, but here, the loss of certification swung that issue to the school’s favor. The court cited Frazier v. Garrison ISD, 980 F.2d 1514 (5th Cir. 1993) and Nunez v. Simms, 341 F.3d 385 (5th Cir. 2003) for the proposition that school boards may terminate, or demote an educator without a hearing if the decision is based on the loss of necessary certification.

Nonrenewal THE COMMISSIONER OF EDUCATION LOST JURISDICTION OVER THE WOMAN’S APPEAL BECAUSE A DECISION WAS NOT RENDERED TIMELY Case citation: Thomas v. Fort Bend ISD, Dkt. No. 050R1-0406 (Comm’r Educ. April 3, 2009). Summary: Aganta Thomas received notice of proposed nonrenewal on March 9, 2006. On March 27, 2006, Thomas requested a nonrenewal hearing. The board concluded that Thomas’s hearing request was untimely and voted to nonrenew the contract the following day. Thomas then filed a grievance complaining that she did not receive a nonrenewal hearing. When the district refused to hear her grievance, Thomas filed an appeal with the Commissioner of Education. In response, the district argued that the Commissioner did not have jurisdiction over the appeal. Ruling: The Commissioner of Education concluded that jurisdiction did not exist over Thomas’s appeal of her contract nonrenewal. Thomas’s appeal alleged that the Commissioner had jurisdiction under Texas Education Code § 7.057 and § 21.209. Education Code § 7.057 is the general grant of jurisdiction to the Commissioner for violations of written contracts that caused or would cause monetary harm or for violations of the “school laws of this state.” Texas Education Code § 21.209 allows a teacher “aggrieved by a board of trustees on the nonrenewal of the teacher’s contract” to appeal under Subchapter G of the Education Code, Chapter 21. Further, Education Code § 7.057(e) provides that there is no jurisdiction under § 7.057 concerning a case to which Subchapter G, Chapter 21 applies. In this case, Thomas was appealing the district’s decisions related to her nonrenewal. According to the Commissioner, the appeal fell within Subchapter G, Chapter 21 of the Education Code. Thus, jurisdiction did not exist under Education Code § 7.057. Furthermore, under Subchapter G, the Commissioner is required to issue a decision not later than the 30th day after the last day on which a response to the appeal may be filed. If the Commissioner fails to do so within that time, the decision of the board is affirmed. In this case, Thomas’s appeal was filed on April 20, 2006. The response was due no later than the 20th day after that – May 12, 2006. The 30th day after the last day the response could be filed was June 13, 2006. Since the Commissioner did not issue a decision by June 13, 2006, the district’s decision was affirmed on that day by operation of law. According to the


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Labor and Employment, continued Commissioner, the timeline for issuing a decision in a Chapter 21, Subchapter G case is mandatory and may not be waived by the parties. Thus, the Commissioner lost jurisdiction over the appeal after June 13, 2006, and therefore dismissed the case for lack of jurisdiction. Things to Remember: The provision in the Education Code requiring the Commissioner to render a timely decision is rarely cited, but perhaps we will see it more often in the future. Here we have a case where the Commissioner is issuing a decision almost three years after TEA lost jurisdiction over the case.

DID THE SCHOOL DISTRICT COMMIT PROCEDURAL ERRORS THAT RENDERED THE TEACHER’S NONRENEWAL INVALID? Case citation: Lowry v. Brookesmith ISD, Dkt. No. 054R1-0509 (Comm’r Educ. June 26, 2009). Summary: Clint Lowry was employed by the Brookesmith Independent School District as a teacher under a term contract for the 2008-09 school year. When the district first hired Lowry, it was agreed that he would take the exam necessary to become certified to teach history. Lowry took the exam four times, but he never passed. On March 12, 2009, the board voted to propose the nonrenewal of Lowry’s contract. The notice indicated that the proposed nonrenewal was based on Lowry’s failure to pass the exam necessary for certification in history and leaving students unsupervised on the playground. On April 6, 2009, the school district’s lawyer sent a letter to Lowry’s attorney with more specific notice of the reasons for proposed nonrenewal and added another reason for the proposed nonrenewal – Lowry’s failure to complete lesson plans. A hearing on the proposed nonrenewal was held on April 17, 2009. During the hearing, the district offered documents that were created after the board voted to propose nonrenewal and Lowry objected. Following the hearing, the board voted to nonrenew Lowry’s term contract. Lowry appealed the board’s decision to the Commissioner of Education. He argued that (1) the decision to nonrenew the contract was not supported by substantial evidence, (2) the local record was not filed timely and, as a result, certain facts should have been deemed in Lowry’s favor, (3) the district did not provide proper notice of proposed nonrenewal, (4) the district improperly presented evidence that had been created after the board’s proposal to nonrenew his contract, (5) the hearing was improper, and (6) the district’s response to the appeal should have been stricken from the record. Ruling: The Commissioner upheld the decision to nonrenew Lowry’s term contract. The Commissioner first considered Lowry’s challenge to the local record. The Commissioner

observed that a district’s failure to file the local record may result in issues being deemed against the school district. However, even a complete failure to file the record does not necessarily result in a teacher prevailing when the case can be decided without the record. Also, if at least a portion of the local record is filed timely, a district may supplement the record. A teacher has seven days within which to object to the local record or it will be deemed complete and accurate. Further, the Commissioner has 30 days within which to issue a decision or the district’s decision will be affirmed. Thus, according to the Commissioner, supplementation of the record by the district must occur so that the teacher has a fair opportunity to make his objection and the Commissioner has a reasonable time to decide the case. In this case, the district filed an incomplete record and Lowry objected to the record several times. However, since a portion of the record was filed timely, the district was entitled to supplement the record. Ultimately, all documents at issue were filed in this case at a time when Lowry could still object and make his case. While the Commissioner did not condone the district’s actions in filing an incomplete record initially, the local record eventually was complete and, thus, no facts were deemed against the school district. Lowry also complained that the notice of proposed nonrenewal was insufficient. The Commissioner observed that a district is required to provide a teacher with notice of the reasons of proposed nonrenewal that are sufficient to allow the teacher to prepare to defend against the allegations. Otherwise the hearing would be unfair. The initial notice, in Lowry’s case, indicated two reasons for proposed nonrenewal: (1) failure to pass the exam necessary for certification in history, and (2) leaving students unsupervised on the playground. However, the notice identified the reasons for proposal nonrenewal as “including but not limited to” these two specific reasons. According to the Commissioner, the original notice in this case was too broad to be very meaningful. When a notice is too broad, the teacher should make a written request for more specific notice. If the district does not provide more specific notice, the teacher then must object on the record before the board. Lowry did not request more specific notice. Nevertheless, the district through its counsel sent a letter to Lowry’s attorney providing more specific notice of the reasons for nonrenewal. Because Lowry did not object to the notice prior to the nonrenewal proceedings and because the district ultimately provided more specific notice, the district prevailed on this issue. Lowry next argued that the board should not have considered documents that were not in existence on March 12, 2009, the day the board proposed nonrenewal. The Commissioner held, however, that as “long as documents are probative of the reasons given for a proposed nonrenewal both the district and the teacher should be able to introduce those documents into evidence even if the documents were created after the board voted to propose nonrenewal.”


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Labor and Employment, continued Lowry also complained that the district did not properly hold the hearing because the hearing notice stated that the hearing would be closed and the hearing at Lowry’s request was an open hearing. According to Lowry, the decisions made at the hearing should have been deemed void because the hearing was held in violation of the Open Meetings Act. According to the Commissioner, Lowry’s claim failed because (1) he did not cite any provision of the Open Meetings Act that may have been violated, and (2) he waived the argument because he did not raise the issue before the board of trustees. The Commissioner next considered Lowry’s argument that the district’s response to his appeal should have been stricken from the record. Under 19 Tex. Admin. Code § 157.1072(d), a school district must answer an appeal no later than the 20th day after the date the appeal is filed or it will be struck as being untimely filed. Lowry argued that the district’s answer was not timely because it was not properly served or sent to Lowry. Under 19 Tex. Admin. Code § 157.1050, a pleading filed with the TEA must be served on all parties by the same method as it was filed with the TEA, except that service by facsimile may be substituted for personal service. In this case, Lowry was correct that the district violated § 157.1050 when it filed its response to the appeal with the Commissioner by facsimile and FEDEX, but sent the response to Lowry by certified mail. Nevertheless, while the Commissioner did not condone the district’s actions in serving Lowry and the Commissioner by different methods, the procedural error did not require striking the district’s response. The Commissioner next addressed whether substantial evidence existed to support Lowry’s nonrenewal. According to the Commissioner, Lowry was correct in that there was not substantial evidence to show that he failed to supervise students. However, the record demonstrated that when the district first hired Lowry, it was agreed that Lowry would take the exam necessary to become certified in history. Lowry took and failed the exam four times. Lowry’s failure to pass the test alone was sufficient to support the nonrenewal of his contract. The record also showed that Lowry failed to complete weekly lesson plans during the 2008-09 school year. His failure to complete lesson plans was sufficient justification to nonrenew the contract. The Commissioner upheld the nonrenewal of the teacher’s term contract. Things to Remember: The school district prevailed in this case, but the Commissioner did not approve of the notice of proposed nonrenewal, calling it “problematic for being too broad.” The Commissioner does not explain why he came to that conclusion. The notice specified a failure to pass a required exam, and a failure to supervise children on the playground, both of which are specific reasons. Presumably it is the “including but not limited to” language that the Commissioner finds objectionable. In any event, the decision also makes it clear that it is the employee’s responsibility to raise concerns about the specificity of the notice.

WHAT IS AN EMPLOYMENT AREA SUBJECT TO A REDUCTION IN FORCE? Case citation: Arredondo v. Brooks County ISD, Dkt. No. 065-R1-0709 (Comm’r Educ. August 8, 2009). Summary: Maria Arredondo was employed by the Brooks County Independent School District as a teacher under a term contract during the 2008-09 school year. At the beginning of the 2008-09 school year, Arredondo was a special education teacher assigned to an elementary school behavior unit. The behavior unit was designed to serve special education students who were having behavior problems. When the school year started, only one student made use of the behavior unit. The student would go there to calm down and then would return to his regular class. He only spent a very brief amount of time in the behavior unit. Because there was no demand for special education instruction in the behavior unit, Arredondo was given other assignments assisting special education teachers. Due to a declining fund balance, the district’s board instructed the interim superintendent to reduce expenditures. As a result, the superintendent recommended a reduction in force of a number of positions, including Arredondo’s. Under the district’s policies, nonrenewal is permitted based on a financial exigency or program changes. The reduction in force policy required the district to apply criteria for deciding which employees would be subject to nonrenewal in each employment area subject to the reduction in force. Because Arredondo was the only teacher in the elementary school’s behavior unit, the district did not apply the criteria set out in the reduction in force policy. The district ultimately nonrenewed Arredondo as part of the reduction in force. Arredondo appealed the board’s decision to the Commissioner of Education. She argued that the behavior unit was not a proper “employment area” and, instead, the special education department, as a whole should have been the “employment area” subject to the criteria set out in the reduction in force policy. Ruling: The Commissioner upheld the nonrenewal of Arredondo’s contract. According to the Commissioner, Texas Education Code § 11.163 charges school boards with adopting employment policies for their districts and § 21.203(b) requires that those policies include reasons for nonrenewal. School boards also have “the exclusive power and duty to govern and oversee the management of the public schools in the district.” Furthermore, school boards are the “ultimate interpreter of its policy.” The Commissioner concluded that the district’s policies gave the district “considerable latitude in deciding how to define employment areas when a reduction in force needs to be made.” Thus, according to the Commissioner, the district could interpret its policy to declare the behavior unit to be an employment area. Because all of the employees in the


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Labor and Employment, continued behavior unit employment area were nonrenewed, the district was not required to employ the employment criteria when it nonrenewed Arredondo’s contract as part of the reduction in force. Things to Remember: This decision is must reading for any district contemplating a reduction in force. This decision is more deferential to the discretion of the local board of trustees than we have seen in some earlier RIF cases.

LIABILITY Qualified Immunity WAS THE SUPERINTENDENT ENTITLED TO QUALIFIED IMMUNITY FROM THE STUDENT’S CLAIMS STEMMING FROM ALLEGED SEXUAL ABUSE BY A BAND DIRECTOR? Case citation: Guillory v. Thomas, 2009 WL 4798143 (5th Cir. 2009). Summary: In January of 2000, the Beaumont Independent School District hired Ferguson Parker as a high school band director. Whitney Guillory became a band student at the high school the following school year. In 2001, Parker was indicted for exposing himself to a 13-year-old middle school student, having sex with a 15-year-old middle school student, and also with a 16-year-old high school student. Following an internal investigation, the district suspended Parker. Parker ultimately was acquitted of the charges. The district later offered to rehire Parker as the band director under the conditions that he (1) not be alone with students in his office, (2) not close his office door, (3) not touch or hug students, and (4) be subject to monthly or bimonthly observations of Parker by Superintendent Dr. Carrol Thomas. Meanwhile, prior to his rehire, Parker allegedly began having sexual relations with Guillory. Throughout the relationship, the two at times left campus during school hours. The relationship continued through 2004, until Guillory’s mother found Parker in the girl’s bedroom closet. Immediately after the mother discovered Parker in the daughter’s bedroom, the parents met with Dr. Thomas and the school district’s lawyer. During that meeting, the parents allege that Dr. Thomas tried to convince them to “keep quiet” about the incident. The parents also claimed that Dr. Thomas told the attorney, “It’s Parker again,” and that the attorney replied, “I told you so,” and “I knew it would happen again.” Dr. Thomas and the attorney denied that those comments were made. Guillory filed suit against the school district, Dr. Thomas, and Parker stemming from Parker’s sexual abuse. Guillory

sued Dr. Thomas in his individual capacity under 42 U.S.C. § 1983 for violations of her due process right to bodily integrity. She alleged that Dr. Thomas acted with deliberate indifference by rehiring Parker despite contrary legal advice and without any safeguards or adequate supervision. Dr. Thomas filed a motion requesting judgment in his favor prior to trial arguing that he was entitled to qualified immunity. Qualified immunity protects government officials who are engaged in discretionary functions. Generally, officials will be shielded from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The trial court denied Dr. Thomas’s motion and held that Guillory alleged the violation of a clearly established constitution right – the right to bodily integrity. The trial court also determined that genuine issues of material fact existed on whether (1) Dr. Thomas knew of a pattern of inappropriate sexual conduct by Parker that pointed plainly toward the conclusion that Parker had been sexually abusing students, (2) he acted with deliberate indifference, and (3) his conduct caused a violation of Guillory’s constitutional rights. Dr. Thomas then filed an interlocutory appeal (i.e., an immediate, pre-trial appeal) challenging the trial court’s denial of his qualified immunity defense. The appeal did not address the student’s claims against the school district or against Parker. Ruling: The appeals court concluded that Dr. Thomas was not entitled to qualified immunity stemming from the band director’s sexual abuse of the student. The appeals court observed that courts apply a two-step analysis to determine whether a defendant is entitled to qualified immunity. First, taking the evidence in the light most favorable to the plaintiff, the court determines if the alleged conduct violated the plaintiff’s constitutional rights. If so, then the court assesses whether the defendant’s actions were “objectively reasonable in light of clearly established law at the time of the conduct in question.” The appeals court determined that Guillory had alleged the violation of a clearly established constitutional right. Schoolchildren have a liberty interest in their bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment. Physical sexual abuse by a school employee violates that constitutional right. Further, a school supervisor can be liable for an employee’s violation of a student’s right to bodily integrity if the supervisor is deliberately indifferent to the student’s constitutional rights. The appeals court determined that Guillory had alleged the violation of a clearly established constitutional right. There was little or no dispute that the sexual activity between Parker and Guillory occurred. Furthermore, Guillory had established genuine issues of material fact on whether Dr. Thomas had knowledge of a pattern of conduct by Parker, was deliberately indifferent to it, and took action that caused a constitutional violation. The appeals court determined further that Dr. Thomas’s conduct, when viewed in the light most favorable to Guillory, was not objectively reasonable. Thus, the appeals


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Liability, continued court upheld the trial court’s denial of the superintendent’s qualified immunity defense stemming from the alleged sexual abuse of the student by the band director.

Retaliation DID THE SCHOOL SUPERINTENDENT RETALIATE AGAINST THE BUS DRIVER? Case citation: Reyes v. Weslaco ISD, 2009 WL 4421269 (5th Cir. 2009). Summary: Manuel Reyes worked as a bus driver for the Weslaco Independent School District. During his employment, he engaged in a lengthy affair with a fellow bus driver. In 2004, Reyes’s wife contacted the district’s superintendent, Richard Rivera, about the affair. During that conversation, she demanded that Rivera terminate both Reyes and the other employee. Rivera had supervisors of Reyes and the other employee discuss the importance of avoiding disruptions at work. Rivera also met with Reyes to express his displeasure with the situation. Shortly thereafter, Reyes voluntarily resigned. The district later re-hired Reyes as a substitute bus driver on a probationary basis and then eventually on a regular basis at the start of the 2005-06 school year, after the probationary period ended. In August of 2005, Reyes attended a Transportation Department meeting, during which he raised the issue of handling disruptive students on the bus. Reyes’s supervisor indicated that he would speak to Reyes privately about the matter and, in protest, Reyes signed “George Washington” on an acknowledgement form handed out at the meeting. There was a dispute as to whether Reyes signed a second form with the name “George Washington.” As a result of Reyes’s conduct, the supervisor recommended to Rivera that Reyes be terminated. Rivera accepted the recommendation and sent Reyes a letter informing him of his termination. Rivera was an at-will employee. He filed a grievance over his termination, but after extensive hearings, Reyes’s grievances were denied at each level of the process. Reyes then brought suit against the district, Rivera, two other supervisors and the district’s board of trustees. After several motions to dismiss and amendments to his lawsuit, the case had been reduced to the following claims: (1) First Amendment retaliation and equal protection violations against the school district for his termination and the denial of his grievances; (2) First Amendment retaliation and equal protection violations against Rivera, and the two supervisors in their individual capacities; and (3) violations of the Texas Constitution. The trial court granted judgment in favor of the defendants on each of those claims and Reyes appealed. The appeal, however, only addressed whether Rivera was entitled to judgment in his favor on the First Amendment and equal protection claims against him in his individual capacity. All other claims were not raised in the appeal.

Ruling: The appeals court upheld the dismissal of the claims against Rivera. Reyes first argued that genuine fact issues existed on whether Reyes was terminated in retaliation for exercising his right to associate with his wife. To establish such a claim for freedom of association, Reyes had to show that (1) he suffered an adverse employment action, (2) his interest in “associating” outweighed the employer’s interest in efficiency, and (3) the plaintiff’s protected activity was a substantial or motivating factor in the adverse employment action. In this case, however, the evidence did not support a claim that the defendants terminated Reyes’s employment or denied his grievance because of his relationship with his wife. Instead, the record showed that Rivera thought highly of Reyes’s wife and would have sought to punish Reyes for engaging in the affair. Reyes simply failed to demonstrate that his association with his wife was a substantial or motivating factor in his termination. Reyes also alleged that his termination violated the First Amendment in that he had a right to engage in an extramarital affair with his fellow employee. The appeals court observed, however, that there is no First Amendment right to engage in extramarital affairs with co-workers. The First Amendment claims were without merit. Because Reyes failed to raise a genuine issue of material fact on whether his First Amendment rights had been violated, the appeals court upheld the dismissal of his claims. Things to Remember: We doubt that our readers will be surprised to learn that there is no constitutionally protected right to engage in an extramarital affair. This case also suggests that it is not a good idea to sign in as George Washington unless that happens to be your name.

PARENTS Fundamental Rights DID THE PARENT RAISE VALID CLAIMS STEMMING FROM THE SCHOOL BOARD’S DENIAL OF HIS REQUEST TO ADDRESS THE SCHOOL BOARD? Case citation: Hilborn v. Klein ISD, 2009 WL 3674517 (S.D. Tex. 2009). Summary: Donald Leo Hilborn was the parent of three children who attended school in the Klein Independent School District. In 2008, the district held a series of school board meetings regarding an upcoming bond election. Hilborn opposed the proposed bond election and alleges that he attempted to voice his opposition at a board meeting but was not allowed to attend the meeting. Hilborn believed that he was prohibited from attending the meeting based on the content of his speech,


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Parents, continued while vendors and others in support of the bond election were allowed to attend the meeting. Hilborn filed suit complaining that the district violated the Texas Open Meetings Act, the Public Information Act, and his due process rights. The trial court, however, dismissed each of those claims. Hilborn then sought to amend his lawsuit to include claims for violations of his due process right in the care, control, and custody of his children. Specifically, he claimed that because he was denied access to information regarding the bond election, he was unable to make decisions regarding the care of his children. He also sought to add claims for violations of his equal protection rights and his First Amendment free speech rights. Ruling: The trial court granted Hilborn’s request to amend his lawsuit as to the First Amendment free speech claims, but did not allow him to add claims for violations of his due process or equal protection rights. The trial court observed that Hilborn would be allowed to amend the lawsuit only if he stated a valid claim for relief that could survive a motion to dismiss by the defendants. The trial court first determined that Hilborn’s due process claims were without merit. While the courts have recognized a parent’s right to control the education of their children, that parental right “is not absolute in the public school context and can be subject to reasonable regulation.” In this case, however, Hilborn failed to identify a particular parental decision that was infringed upon by the defendants. Further, there was no allegation that the district’s actions were unreasonable or failed to promote legitimate state objectives. Because Hilborn did not raise a valid due process claim, the court denied his request to add that claim to his lawsuit. The trial court, likewise, determined that Hilborn’s equal protection claim was without merit. According to the court, to state a viable equal protection claim, Hilborn had to establish “the existence of purposeful discrimination” motivating the state action that caused the alleged injury. In this case, Hilborn simply failed to allege that the board’s bond decision, or any other action by the district, was racially motivated. The trial court, however, allowed Hilborn to amend his lawsuit to include violations of his First Amendment rights. Hilborn alleged specifically that the defendants violated his First Amendment right to freedom of expression when the district held closed meetings to discuss the bond election. He claimed that the district created a designated public forum at its board meetings by consistently setting aside time for public comment. That time was reserved for citizens to discuss agenda items, request information, and redress grievances, among other things. Hilborn complained that the district arbitrarily prevented him from attending and speaking at the board meetings because he opposed the bond election, while vendors and others in favor of the action were allowed to attend. According to the trial court, Hilborn’s allegations were sufficient to state a First Amendment claim and, thus, the court granted the man’s request to add that claim to his lawsuit.

Things to Remember: Many of the facts in this case remain to be resolved. This decision only permits the parent to amend his allegations to continue to pursue the one claim that the court held to have potential merit.

PRACTICE AND PROCEDURE Pre-trial Depositions WERE THE BOARD MEMBERS REQUIRED TO ATTEND DEPOSITIONS EVEN BEFORE SUIT HAD BEEN FILED? Case citation: In re Donna ISD, 2009 WL 3194691 (Tex. App. – Corpus Christi 2009). Summary: Oscar Cassiano, who had been terminated by the district, filed an action in state district court, asking the court’s permission to take the depositions of several Donna Independent School District board members and a teacher before filing suit. The trial court granted Cassiano’s request for the pre-suit depositions and the board members filed an appeal seeking relief from the trial court ruling. Under Texas Rule of Civil Procedure 202, a person may petition a trial court for an order authorizing pre-suit depositions in order to investigate a potential claim. The trial court must grant the petition if it finds that the likely benefit of allowing the petitioner to take the depositions outweighs the burden or expense of the procedure. Cassiano argued that the pre-suit depositions were permissible under Rule 202 in order for him to determine whether he had claims for slander and tortious interference with his contract, arising out of statements made by a “concerned citizen” at a Donna ISD board meeting. The district officials argued that Cassiano was not entitled to take the depositions because (1) they were entitled to immunity from any potential claims that Cassiano could raise, and (2) Cassiano had not exhausted his administrative remedies under the Texas Education Code. Ruling: The appeals court upheld the trial court’s order allowing Cassiano to take pre-suit depositions of the teacher and board members to investigate potential claims stemming from his termination. The appeals court held that the depositions were permissible under Rule 202 even if the board members had governmental immunity from Cassiano’s potential claims. According to the court, it was unclear whether the potential claims for slander or tortious interference with contract would have been brought against the school officials. Further, according to the court, if the evidence obtained during the depositions established that suit was warranted on the slander or tortious interference causes of action, Cassiano would not be required to exhaust administrative remedies before filing


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Practice and Procedure, continued suit. The appeals court held that the former employee was entitled to take pre-suit depositions of the teacher and the board members.

RELIGION Distribution of Religious Material WERE THE SCHOOL DISTRICT’S POLICIES CONCERNING ON-CAMPUS DISTRIBUTION OF NON-SCHOOL MATERIAL BY STUDENTS UNCONSTITUTIONAL? Case citation: Morgan v. Plano, 2009 WL 4265219 (5th Cir. 2009). Summar y: Four families with students in the Plano Independent School District sued the district and a number of school district teachers and administrators claiming that their constitutional rights to freedom of expression had been violated. They alleged that over a three-year period, they were not allowed to distribute various religious materials, including pencils inscribed with “Jesus is the reason for the season,” candy canes with cards describing their Christian origin, tickets to a church’s religious musical programs, and tickets to a dramatic Christian play. They alleged that the district’s policy concerning distribution of non-school materials by students while at school was unconstitutional on its face and was unconstitutionally applied to them and their children. The district’s distribution policy in effect when this lawsuit was filed (the “2004 policy”), provided, in part, that classrooms and hallways “shall not be used for the distribution of any materials over which the school does not exercise control.” Under the policy, each campus was to designate an area where materials could be made available or distributed. The materials first had to be approved by the building principal or designee. Further, the campus principal could develop “reasonable time, place, and manner restrictions regarding the distribution of materials to designated areas.” On April 4, 2005, while this lawsuit was pending, the district’s board of trustees enacted a new version of the distribution policy (the “2005 policy”). The preamble, in part, stated that the policy was designed to give students an opportunity to distribute non-school materials in a manner that did not disrupt the educational process, the order and discipline of the schools, and/or the operation of the schools. According to the preamble, the policies also were intended to decrease distractions and disruptions, to increase the time dedicated to learning, and to improve the educational process, environment and safety.

Both the parents and the district sought judgment in their favor prior to trial. The trial court ultimately concluded that (1) the challenge to the 2004 policy was moot and (2) the 2005 policies were constitutional as they related to middle and secondary school students. However, according to the trial court, the 2005 policy prohibiting the distribution of non-school materials by elementary students in the school cafeteria was overbroad. The trial court held that that provision “reaches more broadly than is reasonably necessary to protect [the district’s] legitimate interests.” The trial court determined that the school district’s 2005 distribution policy was constitutional, except for the restriction on elementary school students’ distribution of non-school materials in the cafeteria. [See Morgan v. Plano ISD, Dkt. No. 4:04CV447 (E.D. Tex. 2007); Texas School Administrators’ Legal Digest, May 2007)]. The parents and the district appealed the trial court ruling. The main issues on appeal were whether (1) the 2005 policy was unconstitutional on its face and (2) whether the plaintiffs’ constitutional challenge to the 2004 policy was moot. This appeal did not address the qualified immunity of two school district principals who had been sued in their individual capacities. [See Morgan v. Plano ISD, Dkt. No. 4:04cv447 (E.D. Tex. 2009); Texas School Administrators’ Legal Digest, June 2009)]. This appeal also did not address the plaintiffs’ claim that the 2004 policy was unconstitutional as it applied to them. Ruling: The court of appeals held that the 2005 policy was constitutional and that the challenge to the constitutionality of the 2004 policy was not moot. According to the appeals court, student expression may be limited by reasonable time, place, and manner restrictions. Those restrictions, however, must be (1) content and viewpoint neutral, (2) narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels of communication of the information. Further, the regulation must “avoid burdening substantially more speech than is necessary to achieve the government’s interest.” In this case, the appeals court held that the district’s 2005 distribution policy was content neutral and furthered a significant, legitimate government interest. The record showed that the regulations were aimed at providing a “focused learning environment for its students” and were intended to facilitate the beginning of class without a wait for the distribution of materials. The restrictions on distribution of materials by elementary students in hallways and the cafeteria were intended to facilitate the movement of students between classes and lunch and to reduce littering. The appeals court also concluded that the 2005 policy was narrowly tailored and provided ample alternative channels of communication. For example, under the policy, students could distribute materials before and after school, during recess and during school hours at designated tables. Middle school and secondary school students were permitted to distribute materials in hallways and in the cafeterias during non-instructional time. According to the appeals court, those were ample alternative channels of communication.


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Religion, continued The appeals court reversed the trial court finding that the 2005 policy’s restriction on the distribution of non-school materials by elementary students in the school cafeteria was overbroad. The record showed that the elementary school lunchrooms were heavily controlled because of the need to move the younger and less mature elementary students through the cafeteria quickly and efficiently. According to the appeals court, the regulation at issue “serves the powerful interests of the school in maintaining order and discipline, essential both to its duty to teach and the protected freedom of its students to speak.” Furthermore, the policy provided the elementary students alternative means of communication, in that they could still distribute materials before and after school and during recess. The appeals court upheld the 2005 policy as it applied to distribution of materials by elementary students in the cafeteria. The appeals court next determined that the families’ challenge to the 2004 distribution policy was not moot. According to the appeals court, the claim was not moot because the families had stated a claim for nominal damages (i.e., a finding that an injury occurred although the actual value of the damages is trivial). According to the appeals court, “a claim for nominal damages avoids mootness.” Thus, the appeals court returned the families’ challenge to the 2004 policy to the trial court for further consideration. Things to Remember: This is the latest ruling in longstanding litigation over this issue in Plano ISD. Districts that face similar concerns should read this 5th Circuit decision carefully.

SPECIAL EDUCATION Attorney’s Fees WAS THE STUDENT, AS THE “PREVAILING PARTY,” ENTITLED TO ATTORNEY’S FEES EVEN THOUGH THE STUDENT’S ATTORNEY REJECTED A SETTLEMENT OFFER THAT WOULD HAVE PROVIDED ALL OF THE RELIEF SOUGHT IN THE DUE PROCESS PROCEEDING? Case citation: El Paso ISD v. R.R., 2009 WL 4828747 (5th Cir. 2009). Summary: R.R. attended school in the El Paso Independent School District and had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). In August of 2005, R.R.’s mother and teacher referred him for special education evaluation due to poor concentration, disorganization, distraction, and difficulty producing written work. The district determined that the student did not qualify for special education services and,

instead served him through its Student Teacher Assessment Team (STAT). The STAT Committee was a pre-referral committee that reviewed student information, implemented interventions, and documented the student’s progress. A special education referral would occur only if the interventions were unsuccessful. R.R. continued to receive services through the STAT team during the 2003-04 and 2004-05 school years. During those school years, he repeatedly failed the TAKS test. The parents requested a full and individual evaluation (FIE) in October of 2005, but the STAT Committee declined because it believed that the student was a few points away from passing the TAKS and given enough chances, he eventually would pass it. Again in September of 2006, the parent requested an FIE. The district set up a STAT meeting to address the request and obtain parental consent. The parents, however, cancelled the meeting and a few days later filed a request for a due process hearing. At a pre-hearing resolution meeting, the district contended that there was no dispute between the parties because it was willing to provide all requested relief. The district had offered to (1) conduct an FIE, (2) convene an ARD to consider the results of the FIE, (3) comply with IDEA’s prior written notice and procedural safeguards provisions, and (4) pay attorney’s fees. The district indicated in writing that it was willing to negotiate a settlement agreement and asked for the amount of attorney’s fees necessary to finalize the settlement. Ultimately, R.R. refused the district’s settlement offer, did not make a counter-offer, and proceeded to a due process hearing. The issues at the hearing were whether the district (1) failed to provide notice to the parent of its refusal to conduct a special education evaluation, (2) failed to provide notice of procedural safeguards to the parent, (3) adhered to its “child find” obligations, and (4) failed to provide timely special education evaluation of the student. [See, Student v. El Paso ISD, Dkt. No. 022-SE-0906 (Hearing Officer Olivia B. Ruiz, Jan. 19, 2007); Texas School Administrators’ Legal Digest, September 2007]. The hearing officer ruled in favor of the parent on each of the issues and the district sought review of the decision by filing suit in federal court. R.R. filed his own claims arguing that it was the prevailing party in the action and, as such, was entitled to attorney’s fees. The trial court upheld the hearing officer’s conclusions that the district failed to provide written notice of its refusal to evaluate the student and violated its child find duties. The trial court upheld the hearing officer’s decision in favor of the student. The trial court also determined that R.R. was the “prevailing party” under the IDEA, even though the relief obtained by the parents was offered to them at the resolution session prior to the due process hearing. The court held that the parents were justified in rejecting the school district’s offer because of concerns over its enforceability. El Paso ISD v. R.R., Dkt. No. EP-07-CV-00125-KC (W.D. Tex. 2008), Texas School Administrators’ Legal Digest, September 2008]. The trial court awarded attorney’s fees to R.R. in the amount of $45,804. The district appealed the trial court’s award of attorney’s fees.


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Special Education, continued Ruling: The appeals court determined that R.R. was not entitled to an award of attorney’s fees, even assuming that R.R. was the “prevailing party” under the IDEA. According to the appeals court, a “prevailing party” is one that attains a remedy that alters the legal relationship between the district and the student and fosters the purposes of the IDEA. A prevailing party is eligible to request attorney’s fees but is not automatically entitled to recover the full amount spent on legal representation. The district argued that R.R. was not the prevailing party. According to the district, because it offered R.R. all requested relief before the due process hearing, the fact that R.R. received the relief that he requested from the hearing officer did not alter the legal relationship between the parties and did not foster the purposes of the IDEA. The appeals court declined to decide whether a party who rejects a settlement offer, and later obtains a judicial ruling that provides no more educational benefit than the settlement offered, is technically a prevailing party. Instead, the court assumed that, in this case, R.R. was the prevailing party “simply because he achieved a judicial order of relief.” The main issue before the court then became whether R.R.’s rejection of the district’s settlement offer affected the amount of R.R.’s attorney’s fee award. The appeals court observed that “[e]arly resolution through settlement is favored under the IDEA.” The statute bars an award of attorney’s fees for work performed by an attorney after a district’s offer of settlement, when the attorney’s work does not ultimately achieve more than that which was offered in the settlement. A court, nonetheless, may award attorney’s fees to a parent who is the prevailing party and who was “substantially justified in rejecting the settlement offer.” It was undisputed that R.R. did not achieve any educational benefit beyond what the district had offered. Thus, the question was whether R.R. was “substantially justified” in rejecting the district’s settlement offer. The appeals court determined that R.R. was not. According to the appeals court, R.R. did not need to continue the litigation by pursuing the due process proceeding after the district had offered all of the relief that he had requested. Because R.R. was not substantially justified in rejecting the district’s settlement offer, the IDEA prohibited an attorney’s fee award for work performed subsequent to the offer of settlement. Thus, the trial court improperly awarded R.R. attorney’s fees for work performed after the district offered to settle the matter. The appeals court also determined that R.R. was not entitled to attorney’s fees for his attorney’s participation in the resolution meeting. The IDEA allows an attorney’s fee award for work performed in any “action or proceeding.” However, the IDEA specifically excludes resolution meetings from the definition of “action or proceeding.” Thus, R.R. was not entitled to attorney’s fees for his attorney’s work at the resolution meeting.

The appeals court also concluded that R.R. was not entitled to attorney’s fees for work performed prior to the resolution meeting. The IDEA states that a court shall reduce attorney’s fees “whenever the court finds that . . . the parent, or the parent’s attorney . . . unreasonably protracted the final resolution of the controversy.” The appeals court determined that R.R. and his attorney unreasonably protracted the resolution of this dispute for over three years. The record showed that the district offered R.R. all relief requested in the due process complaint, including reasonable attorney’s fees. According to the appeals court, at that point, there was “absolutely no need to continue litigating.” Nevertheless, R.R. and his attorney rejected the district’s settlement, walked out of the resolution meeting, and continued litigating the claims. Because R.R. and his attorney unreasonably protracted the resolution of this dispute, the trial court erred when it awarded R.R. attorney’s fees. The court denied the district’s request to recover its own attorneys’ fees, but did order the parent’s attorney, Mark Berry, to pay court costs. Things to Remember: This decision is a strong confirmation that “The IDEA envisions that the parties to a dispute should resolve their differences cooperatively.” The 5th Circuit determined that the trial court was not only wrong to order $45,000 in attorney’s fees, it “abused its discretion” by doing so when there was “absolutely no need to continue litigating.” That is a strong message, as is the order that the parent’s attorney must pay court costs. For further information about this case and its implications, go to www.legaldigest.com for our interview with attorney Joe Tanguma, who argued the case for the EPISD at the 5th Circuit.

Hearing Officer Conduct DID THE PARENT DEMONSTRATE A CONFLICT OF INTEREST ON THE PART OF THE HEARING OFFICER? Case citation: L.F. v. Houston ISD, 2009 WL 3073926 (S.D. Tex. 2009). Summary: This is an appeal from a special education hearing officer decision under the Individuals with Disabilities Education Act (IDEA). L.F. received special education services from the Houston Independent School District as a student with an emotional disturbance. The parent alleged that the district failed to provide L.F. with a free appropriate public education (FAPE) for the 2006-07 and 2007-08 school years. The parent also claimed that the district did not provide an appropriate individualized education program (IEP) for the student. After a hearing, the hearing officer concluded that the district provided the child FAPE and denied all relief requested by the parent. [Student v. Houston ISD, Dkt. No. 222-SE-0407 (Hearing Officer Mary Carolyn Carmichael,


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Special Education, continued May 8, 2008); Texas School Administrators’ Legal Digest, Nov/Dec. 2008]. The parent, proceeding without the assistance of legal counsel, then filed suit in federal court alleging violations of the IDEA, the Rehabilitation Act of 1973, and 42 U.S.C. § 1983. The parent complained that the hearing officer’s decision was invalid because of an inappropriate relationship that existed between the hearing officer and the school district’s lawyer. The parent alleged that the hearing officer’s decision was based on “bedroom affairs.” The school district filed a motion requesting judgment in its favor arguing that the parent had failed to demonstrate the violation of federal law and was not entitled to the relief she requested. The district also requested sanctions against the parent. Ruling: The trial court upheld the hearing officer’s decision denying all relief requested by the parent. The parent argued that the court should disregard the administrative record because it was “tampered” by the alleged inappropriate relationship between the hearing officer and the district’s lawyer. According to the trial court, however, the parent provided no evidence in support of her claims that a conflict of interest existed between the district and the hearing officer. The district had argued that the parent did not have standing to pursue this appeal because a non-attorney parent cannot appear pro se (without legal counsel) to represent their child. The trial court held that the parent, in this case, had standing to pursue the appeal because she had alleged that her own rights as a parent were violated. The parent alleged specifically that the district violated the IDEA’s procedural requirements by failing to provide her proper notice of ARD Committee meetings, failing to provide her with periodic progress reports for the student, failing to conduct manifestation determination reviews before disciplining the student, and changing the student’s placement without the parent’s permission. She also claimed that some of the student’s teachers were not properly trained in special education. The trial court dismissed each of those claims. The parent had failed to exhaust administrative remedies with respect to claims that the district failed to provide progress reports, manifestation determination reviews, or qualified teachers. The record also showed that the district provided the parent with proper, timely notice of ARD meetings. In addition, the parent did not demonstrate that the student was subjected to a change in placement requiring notice to the parent. The trial court also determined that the district provided the student with an appropriate IEP. The record showed that the 2006-07 and 2007-08 IEPs were individualized for her needs based on her assessment and performance. The district evaluated, observed, and assessed the student on numerous occasions and gathered information from the parent and teachers to develop an appropriate education plan for her. The student’s IEPs were tailored to address the student’s specific behavioral and educational needs.

Education also was provided to the student in the least restrictive environment. The record showed that the student had been placed in a Behavior Service Class (BSC) for 25 hours per week, while the remainder of her time was in regular education classes. According to the trial court, that placement allowed “specialized attention and constant discipline,” but also allowed the student to attend classes with the mainstream student population. The trial court ultimately determined that the district provided the student FAPE. The student exhibited ongoing progress on her IEP goals and academic progress during the 2006-07 and 2007-08 school years. Accordingly, the parent’s claims under the IDEA were without merit. The parent’s Rehabilitation Act claims also were dismissed because the IDEA, the Rehabilitation Act, and § 1983 claims were all based on the same factual allegations. The parent simply failed to show a violation of the IDEA and, for the same reasons, she could not demonstrate liability under the Rehabilitation Act. The parent also failed to exhaust administrative remedies on the Rehabilitation Act claim, according to the trial court. The trial court denied all relief requested by the parent. The trial court also issued an order striking all of the pleadings in which the parent alleged an inappropriate sexual relationship between the hearing officer and the district’s lawyer. In addition, the trial court admonished the parent that if she continued to raise such allegations, she could be subject to monetary or other sanctions.

IEPs DID THE SCHOOL DISTRICT PROVIDE THE STUDENT WITH APPROPRIATE IEPs? Case citation: Student v. El Paso ISD, Dkt. No. 179-SE0409 (123-SE-0107) (Hearing Officer Sharon M. Ramage, Aug. 11, 2009). Summary: The student attended school in the El Paso Independent School District and qualified for special education services as learning disabled in basic reading skills, reading comprehension, listening comprehension, and math reasoning. The student’s ARD Committee had exempted the student from the statewide assessment (TAKS) for reading and writing, and instead recommended that she be assessed according to an alternate assessment, the SDAA. The student’s assessments at the time indicated a need for modified instructional and grading criteria based on her deficits in listening comprehension, basic reading skills, reading comprehension and math reasoning. The ARD Committee developed an IEP for the student on May 15, 2006. However, the IEP contained no measurable goals in any of the student’s areas of need, no short-term objectives that were aligned with the ARD Committee’s expectations for the student on


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Special Education, continued the SDAA, and no data regarding the student’s then present levels of performance. The student’s evaluations had concluded that prior interventions (tutoring, modified or shortened assignments, and extra time for work completion) were not sufficient to enable the student to make meaningful educational progress without additional special education supports and services. The IEP developed on May 15, 2006, however, contained only three modifications which were to be provided in all subject areas: extra time for oral and written responses, modified exams, and extra time for completion of assignments. In addition, the IEP did not specify that the student was to receive tutoring, although the evidence supported a finding that the school provided some tutoring through general education. On January 16, 2007, the parent filed a request for due process hearing alleging that the district denied the student FAPE by failing to provide the student specially designed instruction. According to the request, the student’s IEP did not include a statement of her present levels of performance, a description of benchmarks and short-term objectives, or a statement of the student’s measurable annual goals, including academic and functional goals. The parent alleged that, as a result, the student was denied FAPE and the parent was denied the opportunity to participate in the decision-making process. On February 19, 2007, the district sought dismissal of the due process proceeding. The district argued that the hearing officer no longer had jurisdiction over the matter because the district had made a settlement offer to the parent, offering her the relief she had requested. The hearing officer dismissed the complaint, finding that the settlement offer mooted the case. However, a federal court later reversed that decision and returned the case to the Texas Education Agency for a due process hearing. Meanwhile, in April 2007, the district attempted to schedule an ARD Committee meeting to address the student’s IEP goals and objectives and attempted to invite the parent to participate. The ARD Committee proceeded with the meeting on May 15, 2007, without the parent’s participation. The outcome of the ARD meeting was the development of the 2007-08 IEP which contained measurable annual goals, additional modifications, and compensatory services. The new IEP contained data regarding the student’s then present levels of performance and IEP goals and objectives specific to the student’s needs in the areas of reading comprehension, math reasoning and calculation, and listening comprehension. The May 2007 IEP also provided for 80 hours of compensatory education in the area of reading comprehension to provide necessary services. The May 2007 ARD Committee also conducted a Review of Existing Evaluation Data and concluded that the student required supplemental instruction in the area of reading comprehension. The district began providing those services in the summer of 2007.

The due process hearing was held on May 21-22, 2007. The district again requested dismissal of the proceeding. The district argued that because it had provided the student all relief requested, the hearing officer no longer had jurisdiction and the case was moot. The parent continued to complain that the district had denied the student FAPE, specifically with respect to the May 2006 IEP. Ruling: The hearing officer determined that the case was not moot and that the district denied the student FAPE during the 2006-07 school year. According to the hearing officer, the due process proceeding was not subject to dismissal even though the district had offered all requested relief. The issue of mootness had been addressed previously by a federal court which held that the settlement offer did not render the case moot. The court’s order in that case was that the parent was entitled to a hearing. Further, the record showed that the district had not provided the requested relief in a timely manner. The parent complained that the district denied the student a FAPE by failing to include annual goals in the May 2006 IEP, for the 2006-07 school year. The IEP developed at the May 8, 2007 ARD Committee meeting was for the 2007-08 school year. The hearing officer next determined that the district denied the student FAPE during the 2006-07 school year. There was no dispute that the student received instruction in a mainstream setting that was the least restrictive environment for her. However, according to the hearing officer, the district’s educational program for the 2006-07 school year was deficient because it was not individualized on the basis of the student’s assessment and performance, in part, because the student’s IEP contained no annual goals. The hearing officer observed that the IDEA requires that a student’s IEP contain a statement of the student’s present levels of academic achievement and functional performance, including how the student’s disability affects her involvement and progress in the general education curriculum. In this case, the student’s May 2006 IEP contained no data concerning the student’s then present levels of academic achievement and performance other than to state that she was committed to completing her assignments, had improved on standardized tests, and identified generally that she had weaknesses in comprehension and word problems. While the district failed to comply with IDEA’s procedural requirements by not including a statement regarding the student’s present levels of performance within the IEP, that information had been shared with the ARD Committee, including the parent, in the development of the IEP. The student’s parent and district personnel had that information before them in the form of the student’s FIE, so the failure to include the data within the four corners of the IEP, standing alone, did not support a finding of a denial of FAPE. Nevertheless, the hearing officer concluded that the ARD Committee’s failure to appropriately use that information to develop an appropriate IEP, did result in a denial of a FAPE. The hearing officer observed that a student’s IEP must be


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Special Education, continued individualized based on her assessment and performance. An “individualized program” is one that meets IDEA’s procedural requirements, is current, and is individually tailored to the student’s needs as known to the school district at the time. According to the hearing officer, the program for the student failed to appropriately address her specific needs in the areas of her learning disability and did not include any goals and objectives. The hearing officer observed that the IDEA also requires that for students who take alternative assessments, such as the SDAA, the IEP must contain a description of benchmarks or shortterm objectives aligned to alternative achievement standards. In this case, the student was required to take an alternative assessment, the SDAA, in reading, writing, and, after the spring of 2006, in math. However, the student’s IEP for the 2006-07 school year contained no benchmarks, short-term objectives or annual goals related to the alternative assessments. According to the hearing officer, the ARD Committee adopted “an empty IEP that contained only minimal classroom modifications that according to the student’s FIE had not been previously successful without additional special education support and instruction.” The hearing officer concluded that the IEP’s failure to include short-term objectives related to the student’s alternative assessment denied the student FAPE. The hearing officer ordered the district to develop an appropriate IEP and provide the student with compensatory services. The district also argued that the parent unreasonably protracted the proceedings by failing to accept a settlement offer made prior to the dismissal of this case in 2007, and, by continuing to pursue the due process hearing after it had in fact convened an ARD Committee meeting to correct the deficient IEP. The hearing officer observed, however, that a federal court already had concluded that the parent was justified in rejecting the settlement offer because the conditional offer would not have provided her with an enforceable order or agreement. The hearing officer determined, as a result, that the parent did not unreasonably protract the litigation of these claims.

Reimbursement WERE THE PARENTS ENTITLED TO REIMBURSEMENT FOR THE COSTS OF THE PRIVATE PLACEMENT? Case citation: Student v. Northwest ISD, Dkt. No. 057SE-1108 (Hearing Officer Ann Vevier Lockwood, July 28, 2009). Summary: During the 2001-02 school year, while the student attended school in the Northwest Independent School District, the parent became concerned that the student did not recognize letters and the child’s fine motor skills did not appear similar to

other students. At the parent’s request the district conducted a comprehensive individual assessment in April 2001. An ARD Committee, however, concluded that the student was not eligible for special education services. The student later was evaluated using the school district’s dyslexia screening instrument. The Dyslexia Screening Report concluded that the student exhibited “characteristics of dyslexia.” As a result, the district began serving the student under § 504 beginning in second grade. In October of 2003, the student was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). The student had a history of difficulties with organization, maintaining focus and attention, completing work, and spelling. These behaviors interfered with student’s ability to complete assignments. She continued to be served through the § 504 program. A § 504 committee met in May 2007 to review and evaluate the student’s progress and to prepare for the next school year. The committee noted the student benefited from small group instruction, individual help, and tutoring. The § 504 plan included the following accommodations: (1) shortened spelling list or from high frequency list; (2) use of computer with spell check; (3) no penalties for spelling except for high frequency words; (4) lists when doing definitions; (5) copies of teacher notes after attempts; (6) teacher checks for understanding; (7) frequent feedback; (8) organizational support; (9) oral administration for math tests; and (10) preferential seating. A parent-teacher conference was held in September 2007. The student’s teachers were concerned that the student was not turning in homework and losing assignments. The parents were concerned about poor spelling and difficulties using a student planner effectively. Adjustments were made in the way the planner was to be used and a counselor was to assist with organization. The committee also discussed adding a spelling program but there was no additional evidence that a specialized spelling program was indeed provided. However, by October 1st the student’s language arts teacher was deeply concerned about the student’s performance in her class. She notified the school counselor that the student needed additional support beyond the § 504 accommodations. A § 504 Committee met on October 22, 2007 to discuss the student’s academic progress. At that time the student was struggling with passing math, World Geography and language arts. She also had difficulty maintaining focus in several classes. The § 504 Committee initiated a referral for a special education evaluation (FIE) in October 2007. The FIE was prepared by a multidisciplinary team including an educational diagnostician, two regular education teachers, and a special education teacher. An ARD was conducted on January 11, 2008 to review and discuss the results of the FIE. The school district’s proposed IEP included eligibility for special education as a student with an Other Health Impairment based on the student’s ADHD. The proposed IEP consisted of a single broad goal that the


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Special Education, continued

The parents did not agree with the proposed IEP. They also submitted a request for reimbursement for a private placement and stated their intent to withdraw the student from the district. A Notice of Refusal was issued on January 15, 2008. The parents withdrew the student and placed her at a private school. The parents also filed a request for a due process hearing. The parents complained that the district should have identified the student as eligible for special education during the 2001-02 school year. They argued that the student’s IEPs were inappropriate and that the private placement was the appropriate placement for the student. They requested reimbursement for the costs of the private placement as well as transportation to the private school. The district denied the allegations and argued that many of the claims were barred by the one-year statute of limitations. Ruling: The hearing officer ruled in favor of the district on each of the parents’ claims. The hearing officer first concluded that claims that arose prior to November 3, 2007, were barred by the one-year statute of limitations that applies to IDEA claims. The parents failed to prove an exception to the limitations period by showing that either (1) they were prevented from filing a due process complaint due to specific misrepresentations by

the school district or (2) the district withheld information from parents that it was required to provide under IDEA. The main issues in the case, therefore, were whether the district provided appropriate assessments and IEPs for the student. The hearing officer concluded that the 2007 FIE met all requirements under IDEA and was appropriate. The student met eligibility requirements for special education as a student with an Other Health Impairment but not as a student with a specific learning disability. The parents failed to show that the district’s proposed IEP was not reasonably calculated to provide the student a meaningful educational benefit. The record showed that the proposed instructional accommodations, content mastery, morning and after school tutorials, among other things, supported the conclusion that the IEP was appropriate for the student. According to the hearing officer, the proposed plan was individualized on the basis of student assessment and performance, administered in the least restrictive environment; provided services in a coordinated and collaborative manner by key stakeholders, and was likely to provide the student positive academic and non-academic benefits. The parents also were not entitled to reimbursement for the costs associated with the student’s unilateral private placement. The evidence in this case demonstrated that the student’s proposed IEP was reasonably calculated to provide the student with educational benefit. According to the hearing officer, although the student was not entitled to transportation to the private placement, the student was entitled to transportation as a related service to access the proposed IEP at the public school if the family ultimately demonstrated a need for those services. The hearing officer ruled in favor of the district on each of the parents’ claims.

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student would master independent study skills needed for success in the mainstream. The proposed IEP also included four specific short-term objectives: (1) arrive in class on time with required materials, homework, and assignments; (2) plan, prepare for and perform assigned tasks on time; (3) demonstrate skills for independent study, comprehension and recall in a mainstream or content mastery setting; and, (4) locate words in a dictionary, utilize spell check and improve editing skills. Under the IEP, the student was to remain in all regular education classes with the exception of time spent in content mastery. The IEP proposed content mastery support for 180 minutes for each six-week academic period.


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www.legaldigest.com Fixing Special Education invites discussion and action and is a must-read for anyone interested in improving special education and restoring balance to school decision making. I am happy that Ms. Freedman has shared her wide experience in this compelling little book. I hope that it starts an important national conversation. Philip K. Howard, Chair of Common Good and author of The Death of Common Sense Attorney Miriam Freedman has provided a wealth of information to parents, school people, and other interested parties. Special education laws and rules can be very complex, but Miriam has boiled special education down to what it should look like, in an easily readable format. Hopefully, all parties will take heed and students will be much better served. David Driscoll, former Massachusetts Commissioner of Education

ducation E l a i c e p S g Fixin Transform a Broken System 12 Steps to

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zig Freedman

Miriam Kurt

Celebrating What is Right Addressing What is Wrong Attorney and author Miriam Kurtzig Freedman is an expert in special education-having ‘grown up’ with these laws since the early days-first as a public school teacher, then a Massachusetts hearing officer, and, for more than 20 years, as an attorney representing public schools and a national speaker and consultant. Driven by her love of public education since the day she immigrated to America in elementary school, Attorney Freedman brings wide experience, passion, and creativity to this endeavor.

Fixing Special Education Workshop Thursday, April 8, 2010 Henry B. Gonzalez Convention Center • San Antonio

See flyer in this issue for more details!


February, 2010