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TEXAS SCHOOL ADMINISTRATORSʼ Publishers: Frank Kemerer, Jim Walsh and Eric Schulze Managing Editor: Eric Schulze Co-Editors: Laurie Maniotis and Jennifer Childress

LEGAL DIGEST TM

Volume 17, Number 8

September 2001

sexual harassment of students: a brief history of fourteenth amendment and title ix litigation By Joe B. Hairston Attorney at Law Walsh, Anderson, Brown, Schulze & Aldridge, P.C. Austin, Texas

When Employees Harass or Otherwise Molest Students I. A Little Ancient History: Doe v. Taylor Independent School District1 Most Texas public school people know the story of Jane Doe and Taylor ISD. Indeed the story was heard far beyond the school community thanks to an article entitled “The Seduction of Jane Doe,” published in the November 1994 issue of Texas Monthly.2 In the article, Jane Doe and her family went public and told all. Jane Doe was a freshman in Taylor High School during the 1986-1987 school year. During that year, Jane Doe was a student in the biology class of Coach Jesse Lynn Stroud. Stroud was a husband, father, and pillar of the community whose civic accomplishments included founding Taylor’s first chapter of the Fellowship of Christian Athletes. During the spring of 1987, Stroud also began having sexual intercourse with Jane Doe. Despite rumors and allegations of misconduct concerning Stroud, the truth did not come out until the fall of 1987. In October, Jane Doe’s mother found love letters from Stroud among her daughter’s possessions. The Doe family took the letters to their personal lawyer, who met with Jane. In that meeting Jane admitted to the lawyer that she and Stroud had been having sex. Eventually, Jane Doe filed a federal lawsuit against Taylor ISD, the Superintendent, the Principal, and Stroud.

The famous decision of the Fifth Circuit Court of Appeals concerns only the legal situation of the Superintendent and Principal. Jane Doe’s lawsuit was grounded upon two premises. The first premise is that schoolchildren have a liberty interest in their bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment to the Constitution. The second premise is that physical sexual abuse by a school employee violates that right. The Fifth Circuit agreed with Jane Doe on both premises. The question then became whether the two administrator supervisors could be held liable for Stroud’s conduct. In addressing this question of supervisory liability, the Fifth Circuit set forth the following test: A supervisory school official can be held personally liable for a subordinate’s violation of an elementary or secondary school student’s constitutional right to bodily integrity in physical sexual abuse cases if the plaintiff establishes that: (1) the defendant learned of facts or a pattern of inappropriate sexual behavior by a subordinate pointing plainly toward the conclusion that the subordinate was sexually abusing the student; and (2) the defendant demonstrated deliberate indifference toward the constitutional rights of the student by failing to take action that was obviously necessary to prevent or stop the abuse; and (3) such failure caused a constitutional injury to the student.3

IN THIS ISSUE . . . • Sexual Harassment of Students: A Brief History of Fourteenth Amendment and Title IX Litigation (Joe B. Hairston) • Law Dawg (Jim Walsh) • Regional One and One-Half Day Workshops: Mastering Effective Documentation (Frank Kemerer and John Crain) Announcement and Registration Form • TASPA/Legal Digest Conference on Personnel Law for School Administrators Announcement and Registration Form (Wednesday, December 5, 2001 at the Renaissance Austin Hotel) • Legal Developments


2 The Fifth Circuit then proceeded to address the legal defenses of the Superintendent and the Principal under this three-part test. Both the Superintendent and Principal asked to be dismissed from the lawsuit under the defense of qualified immunity. The landmark decision on qualified immunity of governmental officials is Harlow v. Fitzgerald, a case arising from the swamp of the Nixon Administration. In Harlow, the Supreme Court concluded “that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”4 The idea behind the qualified immunity defense is that governmental officials should not be required to predict the future of the law. It is enough that they know what is clearly established at any given time without having to guess about how the law might develop in the future. The Superintendent and Principal argued that the liberty interest in bodily integrity under the Fourteenth Amendment was not clearly established law as of the events of 1987, but the Fifth Circuit disagreed. The question then became whether the Superintendent and Principal possibly could be found by a jury to have violated that liberty interest under the three-part test set forth by the Court. The Court concluded that the Superintendent should be dismissed from the lawsuit. He investigated the rumors that he heard, questioned Stroud, and met with Jane Doe and her parents. Both Stroud and Jane Doe denied any inappropriate relationship. The Court determined that the Superintendent’s actions “were ineffective, but not deliberately indifferent.” In other words, given the undisputed facts, even if a jury were to believe all of Jane Doe’s allegations, there would be no rational basis to find that the Superintendent’s conduct was deliberately indifferent. The Court viewed the evidence regarding the Principal differently. Many of the facts involving the Principal’s actions were in dispute. In a motion to dismiss for summary judgment, the court must view the record in the light most Texas School Administrators’ Legal Digest ISSN 0882 – 021X Managing Editor Co-Edited By Eric Schulze Laurie Maniotis & Jennifer Childress Published monthly except July and December Individual subscription..................................................................... $120 Copyright 2001. Reproduction of all or part of this publication requires permission from the editor. 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 Editorial Office Business and Conference Office P. O. Box 2156 610 North Bell Avenue Austin, TX 78768 Denton, TX 76209 512-454-6864 940-382-7212 FAX 940-383-3809 E-mail info@legaldigest.com Web Site www.legaldigest.com

favorable to the person opposing the motion to dismiss. In this case, Jane Doe was opposing the Principal’s Motion for Summary Judgment. The Court held that if a jury believed Jane Doe’s allegations, it could find deliberate indifference on the part of the Principal. Although the Principal’s motion to dismiss on summary judgment was denied, no judge or jury ever determined which of Jane Doe’s allegations were true, much less whether any such allegations could constitute deliberate indifference on the part of the Principal. On an 8 to 6 vote, a seriously divided Fifth Circuit sent the case, absent the Superintendent, back to the District Court for trial. The case settled, and the trial never happened. If truth is simply what a jury believes, then the truth of Doe v. Taylor ISD will never be known. The most important lesson of Doe v. Taylor ISD is that administrators should investigate, document, and take appropriate action. That was the real difference between the granting of summary judgment for the Superintendent and denial for the Principal. A second and perhaps more difficult lesson is to think outside the box. Many people find it difficult to believe that a pillar of the community could be guilty of such serious misconduct. There is a saying that life is the art of making decisions on the basis of inadequate evidence. In the context of employees and students, if one must risk error because of inadequate evidence, it is best to risk error on the side of the student rather than the employee. This is true from the perspective of both legal risk and common decency. The third lesson is that the three-part test set forth by the Fifth Circuit is tough on plaintiffs and should provide an adequate defense to supervisory administrators. Indeed, given the difficulty of meeting the three-part test in Doe v. Taylor ISD, it is not surprising that plaintiffs have turned to Title IX as an alternative basis for presenting their claims. II. Gebser v. Lago Vista Independent School District5 The plaintiff-student in Gebser v. Lago Vista ISD sued under Title IX of the Education Amendments of 1972. Title IX provides, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . . .”6 Title IX says nothing about whether a private citizen may file a lawsuit under the statute or what remedies might be available in such a cause of action. Initially, it was possible to conclude that enforcement was a matter between the federal government and the recipient of the federal funds, and that a violation could result in the loss of those funds. That changed in 1979 with the Supreme Court’s decision in Cannon v. University of Chicago.7 In Cannon, the Supreme Court found in Title IX an implied right of action on the part of a private litigant. Cannon left unresolved, however, the question of what a private citizen might get out of such a lawsuit. After Cannon, it was possible to conclude that a private citizen might get injunctive relief in the form of an order that the recipient of federal funds stop discriminating on the basis of sex. That changed in 1992 with the Supreme Court’s decision in


3 Franklin v. Gwinnett County Public Schools.8 In Franklin, the Supreme Court found in Title IX what amounted to a second implied right, that being the right to money damages. Given the spectacle of implied right upon implied right, the plaintiffs’ lawyers perked up considerably. An implied right, somehow found by federal judges, is the sort of thing that causes severe dyspepsia among “strict constructionists.” A strict constructionist is, of course, a person who is philosophically opposed to judicial activism that benefits a constituency other than his own. Thus, Cannon and Franklin set the stage for Gebser. Gebser is another story of a male teacher sexually abusing a freshman high school girl. Gebser entered high school and was assigned to classes taught by Frank Waldrop. Waldrop’s conduct toward Gebser involved suggestive comments, kissing, fondling, and eventually sexual intercourse. Gebser did not report the relationship to school officials. She later testified that while she realized that Waldrop’s conduct was improper, she was uncertain how to react and wanted to continue having him as a teacher. Finally, in January 1993, a police officer discovered Waldrop and Gebser having intercourse and arrested Waldrop. During the entire period, the school district had neither promulgated nor distributed an official grievance procedure for lodging sexual harassment complaints, nor had it issued a formal anti-harassment policy. Gebser and her mother filed suit against the Lago Vista ISD under Title IX, and the case eventually arrived at the Supreme Court. The Supreme Court began by noting that Cannon had found an implied private right of action and that Franklin had established that a school district can be held liable in money damages in cases involving a teacher’s sexual harassment of a student. The remaining question, the Supreme Court concluded, was “to define the contours of that liability.”9 In other words, the task in Gebser, as it had been in Doe v. Taylor ISD, was to come up with a test that would set forth the plaintiff’s burden in such a case. A crucial fact in Gebser was the school district’s lack of knowledge about what was going on. There had been one parental complaint about comments that Waldrop had made in class, but there simply was inadequate evidence to support an allegation that the school district had any knowledge that Waldrop was having intercourse with Gebser. The Supreme Court concluded that, as a general matter, Congress did not intend for there to be unlimited recovery in damages against a recipient of federal funds when the recipient is unaware of discrimination in its program. Given the foregoing, the Supreme Court fashioned the following requirements for recovery of damages: Consequently, in cases like this one that do not involve official policy of the recipient entity, we hold that a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond. We think, moreover, that the response must amount

to deliberate indifference to discrimination. The administrative enforcement scheme presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance. The premise, in other words, is an official decision by the recipient not to remedy the violation.10 Given the foregoing burden of proof, Gebser was out of luck. The only official alleged to have had information about Waldrop’s misconduct was the high school Principal. That information, however, consisted of a complaint from parents of other students charging only that Waldrop made inappropriate comments during class, which plainly was insufficient to alert the Principal to the possibility that Waldrop was involved in a sexual relationship with a student. Lago Vista, moreover, terminated Waldrop’s employment upon learning of his relationship with Gebser. With regard to Lago Vista’s alleged failure to promulgate and publicize an effective policy and grievance procedure for sexual harassment claims, the Supreme Court observed that any such failure would neither establish the requisite actual notice and deliberate indifference nor constitute discrimination under Title IX. Finally, the Supreme Court noted that the issue in the case was whether the independent misconduct of a teacher is attributable to the school district that employs him for purposes of Title IX liability. The Court concluded pointedly, “Until Congress speaks directly on the subject . . . we will not hold a school district liable in damages under Title IX for a teacher’s sexual harassment of a student absent actual notice and deliberate indifference.”11 Justice O’Connor wrote the opinion in Gebser, in which Rehnquist, Scalia, Kennedy, and Thomas joined. The majority decision in Gebser stirred up a considerable negative reaction. The general criticism was that the Supreme Court had raised a barrier that an abused plaintiff student would never be able to surmount. Moderate Justices Stevens, Souter, Ginsburg, and Breyer vigorously dissented. Justice Stevens lamented, “As long as school boards can insulate themselves from knowledge about this sort of conduct, they can claim immunity from damages liability. Indeed, the rule that the Court adopts would preclude a damages remedy even if every teacher at the school knew about the harassment but did not have ‘authority to institute corrective measures on the district’s behalf.’”12 Thus far, Congress has not accepted the majority’s implied invitation to speak directly on the subject, and the Gebser precedent controls. A recent case involving the Dallas ISD reveals how plaintiffs and school districts are faring in the Fifth Circuit under both Doe v. Taylor ISD and Gebser v. Lago Vista ISD. III. The Progeny of Doe v. Taylor ISD and Gebser v. Lago Vista ISD: A Fifth Circuit Case in Point The American judicial system is based on the concept of precedent. When the Fifth Circuit Court of Appeals sets forth a three-part test for constitutional claims, as it did in the Taylor ISD case, that test becomes the basis for adjudicating similar claims in later cases in that Circuit. When the U.S.


4 Supreme Court establishes the standard that a plaintiff must meet for Title IX claims, as it did in the Lago Vista ISD case, that standard becomes the basis for adjudicating similar claims in later cases across the nation. Thus, when a group of students and parents chose to file both constitutional and Title IX claims against the Dallas ISD, the Fifth Circuit issued two decisions addressing those claims under the Taylor ISD and Lago Vista ISD precedents. Doe v. Dallas Independent School District (Doe I)13 From 1983 to 1987, John McGrew, a third-grade teacher and Boy Scout Troop leader at an elementary school in Dallas ISD, sexually molested numerous male students. The subsequent lawsuits, filed by or on behalf of the student victims, asserted both constitutional and Title IX claims against the Principal and the Dallas ISD. In 1998, the Fifth Circuit disposed of the constitutional claims against both the Principal and the District in its first decision in the case (Doe I). The Constitutional Claim Against the Principal As in the Taylor ISD case, the Principal asked to be dismissed on summary judgment under the defense of qualified immunity. Specifically, the question for the Court was whether the plaintiffs had presented sufficient evidence to get to the jury under the three-part test of Doe v. Taylor ISD. Applying the test, the Court first asked whether there was sufficient evidence that the Principal had learned of facts or a pattern of inappropriate sexual behavior by McGrew pointing plainly toward the conclusion that McGrew was sexually abusing a student. The Court concluded that there was evidence that the Principal had notice, as of the spring of 1986, that McGrew had fondled a student. That conclusion satisfied the first part of the test, and the Court proceeded to the second part of the test, the issue of deliberate indifference. In a set of facts reminiscent of the Superintendent in the Taylor ISD case, the Court here determined that the Principal, upon learning of the fondling accusation, met with the student, his mother, and McGrew. Following the meeting, the Principal determined that the student’s allegations were not true. Nevertheless, the Principal warned McGrew to examine his behavior closely and to ensure that he was not doing anything that could be misinterpreted by a child. The Court concluded, “The fact that [the Principal] misread the situation and made a tragic error in judgment does not create a genuine issue of material fact as to whether she acted with deliberate indifference toward [the student’s] constitutional rights.”14 Thus, given the threepart test of the Taylor case, the Principal was dismissed on summary judgment based on qualified immunity. The Constitutional Claim Against the Dallas ISD The second issue in Doe I involved the potential lia-

bility of the Dallas ISD, a question not before the Court in the Taylor ISD decision and not yet addressed in this article. Under the law, a school district may not be held liable simply because an employee commits a wrong. Rather, liability of a school district arises only when a person who qualifies as a “policymaker” commits the wrong, in effect making the wrongful conduct the “policy or custom” of the school district itself. In the Dallas ISD case, the Court first concluded, on the basis of long-standing precedent, that a Principal is not a policy-maker for purposes of imposing liability upon a Texas school district. The Court further determined that the lack of an official policy on the issue of sexual harassment was an inadequate basis for finding deliberate indifference on the part of the Dallas ISD. The point is that the Dallas ISD, which is to say the taxpayers, could not be held liable for a wrong that was not done pursuant to any policy or custom of the district. Thus, the Dallas ISD was dismissed on summary judgment. The remaining claim involved Title IX. The trial court had dismissed the Title IX claim on the grounds that same-sex harassment could not be the basis of a claim under Title IX. The Fifth Circuit observed that the Supreme Court, subsequent to the trial court’s decision, had held to the contrary. Thus, the Fifth Circuit sent the case back to the trial court for further proceedings involving only the Title IX claim. Doe Ex. Rel. Doe v. Dallas Independent School District (Doe II)15 The Title IX Claim Against the Dallas ISD The Dallas ISD went back to the trial court, which reconsidered the Title IX claim and again granted summary judgment for the school district. The plaintiffs appealed, and the case returned to the Fifth Circuit. In addressing the Title IX claim, the Fifth Circuit had the benefit of the Supreme Court’s decision in Gebser v. Lago Vista ISD. The Dallas ISD asked for summary judgment under the standard set forth in Gebser, arguing that the Principal was not a supervisory official with authority to take corrective action, that she did not have actual notice of abuse, and that she did not act with deliberate indifference. In response, the plaintiffs contended that the Principal was a supervisory official with the power to stop the abuse, that she had actual notice of abuse, and that she responded with deliberate indifference. With regard to the first part of the Gebser standard, the Fifth Circuit concluded that it was unnecessary to determine whether the Principal had the authority to take corrective action to end McGrew’s abuse of students. Instead, the Court simply assumed, for purposes of the analysis, that the Principal had such authority. Turning to the second part of the standard, the Court also simply assumed that the Principal had received actual notice of McGrew’s conduct. The Court was able to proceed on these two assumptions because the third part of the standard, deliberate indifference, would determine the outcome of the case. The Court turned to the question of whether the plaintiffs


5 had presented a genuine issue of material fact, which is to say enough evidence to get to a jury, regarding whether the Principal had been deliberately indifferent. In addressing this issue, the Court returned to the same fact scenario that had led to the summary judgment for the Principal in the earlier adjudication of the plaintiffs’ constitutional claims. The Court described the Principal’s meeting with the student, his mother, and McGrew. During the meeting, the Principal asked the student to repeat his accusation to McGrew, himself. The Principal and the mother both asked McGrew directly whether he had fondled the student, and McGrew denied it. McGrew claimed that he had spanked the student and that the student was mad because of the spanking. At the end of the meeting, the Principal told the mother that she would make sure that the student was not sent to McGrew’s classroom again. After the mother left, the Principal told McGrew that the accusation was very serious and led McGrew to understand that he should not repeat the behavior that made the child accuse him of abuse. The plaintiffs responded by contending that the Principal had failed to report the student’s allegation to Child Protective Services, failed to monitor McGrew further or make him attend additional training, and failed to ever raise the issue of sexual abuse with him again until his arrest. The Fifth Circuit concluded that, even drawing all reasonable inferences in favor of the plaintiffs, the plaintiffs had failed to present enough evidence to overcome the school district’s motion for summary judgment on the issue of deliberate indifference. Reciting once again the facts of the Principal’s efforts to address the allegations against McGrew, the Court stated of the Principal, “She concluded, in error, that [the student’s] allegation was not true, and her erroneous conclusion had tragic consequences. However, we cannot say on the facts before us that these actions, though ineffective in preventing McGrew from sexually abusing students, were an inadequate response to [the student’s] allegation.”16 Thus, the Dallas ISD received summary judgment on the Title IX claim for the same reason that both the Principal and the school district received summary judgment on the constitutional claims: the absence of evidence of deliberate indifference. Under both the Taylor ISD and Lago Vista ISD cases, the crucial issue may be deliberate indifference. Regardless of what a court determines regarding the other issues, in the absence of sufficient evidence to raise a genuine question regarding that material issue, the defendant school employee and school district prevail. When Students Harass or Molest Students I. A Little Ancient History: Walton v. Alexander17 The cases discussed to this point have involved allegations that a supervisor or a school district was somehow remiss in protecting students from misconduct by employees of the school districts. The focus now shifts to cases in which parents and students allege that such defendants have failed to meet their legal obligations to protect students from misconduct by

fellow students. Walton v. Alexander is not as well-known as Doe v. Taylor ISD, but it provides a good starting point for the new discussion. The case arose from events that occurred at the Mississippi School for the Deaf in 1987, the same year that Jane Doe fell victim to the teacher in Taylor, Texas. Unlike Jane Doe, Christopher Walton was not abused by an employee of a governmental entity. Rather, he was sexually molested by a fellow student. As a result, Walton sued the Superintendent of the School. Like Jane Doe, he alleged that the Superintendent had failed to take appropriate steps to protect him from these sexual assaults and that this failure had violated his liberty interest to bodily integrity under the Fourteenth Amendment. In Doe v. Taylor ISD in 1994, the Fifth Circuit first determined that Jane Doe had a cause of action, and second set forth the three-part test for that cause of action. In Walton v. Alexander, decided in 1995, the Court never got beyond the first question. The same Fifth Circuit that determined that Jane Doe could indeed maintain a cause of action against supervisory administrators for injury at the hands of an employee of the District concluded that Walton did not even have such a cause of action against a supervisory administrator for injury at the hands of a fellow student. The Court began by observing that nothing in the language of the Fourteenth Amendment requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. Rather, the clause is phrased as a limitation on the state’s power to act, not as a guarantee of certain minimal levels of safety and security. An exception to this general proposition arises from situations in which the state creates a “special relationship” with the citizen. The intellectual breeze blowing through special relationship legal analysis gets pretty cold and thin, but basically the idea is that the special relationship arises when the state deprives a citizen of his liberty so that he is unable to care for himself. Thus, only when the state, by its affirmative exercise of power, has custody over an individual involuntarily or against his will does a special relationship exist between the individual and the state. Examples of such custody include a prisoner or a person involuntarily committed to a mental institution. The deprivation of an individual’s ability to take care of himself in such situations creates the special relationship between the individual and the state, and a consequent cause of action in the event that the state fails to meet its responsibility of care. Having identified the special relationship requirement, the Court proceeded to discuss the situation of a public school child. Walton argued that a special relationship had arisen because he lost a substantial measure of freedom to act under the significant custodial component present in the regimen of the Mississippi School for the Deaf, a residential placement for hearing impaired students. Walton slept and ate at the School. The School strictly regulated when Walton could come and go and the conditions under which he could leave the campus. The Court acknowledged the level of control that the School had over Walton, but it concluded that these arrangements fell short of the sort of custody required to create a special relationship. The Court emphasized that Walton attended the


6 School through his and his parents’ own free will without any coercion by the state. Although Walton’s freedom was curtailed, it was he who voluntarily subjected himself to the rules and supervision of School officials. The arrangement between Walton and the State of Mississippi fell far short of the sort of involuntarily control associated with prisoners and persons committed to mental institutions. Accordingly, the Court concluded that Walton had no claim to a special relationship and, thus, no cause of action against the Superintendent of the School because of sexual abuse by a fellow student. The full Fifth Circuit Court of Appeals issued the Walton decision, but three judges did not buy the analysis of the majority. These judges argued that instead of asking whether a person was taken into custody involuntarily, the Court should have considered several factors to determine whether a special relationship, and consequent cause of action, existed. These judges maintained that the question should not focus on how the individual got into state custody, but rather to what extent the state exercises dominion and control over the person. The end result of Walton v. Alexander generally was to shut the courthouse door to students attempting to maintain causes of action against administrators under the Fourteenth Amendment based on sexual abuse or molestation by other students.18 The basic question, however, was far from foreclosed. When the Fifth Circuit issued its decision on the constitutional claims in Walton v. Alexander, LaShonda Davis already had filed her lawsuit under Title IX in the United States District Court for the Middle District of Georgia. The Supreme Court would write the next chapter in the history of student-to-student sexual harassment litigation. II. Davis v. Monroe County Board of Education19 LaShonda Davis was a fifth grader at Hubbard Elementary School in Monroe County, Georgia. She alleged that she had been the victim of harassment by another fifth grader, identified in the lawsuit as “G. F.” Davis alleged that over a period of many months G. F. engaged in conduct including touching her breasts and genital area, making vulgar statements, and placing a door stop in his pants and acting in a sexually suggestive manner. A further allegation was that Davis was not G. F.’s only victim. Davis also alleged that she reported this conduct to both teachers and the Principal and that no disciplinary action was taken in response to G. F.’s behavior. Eventually, G. F. pled guilty to sexual battery for his misconduct, and Davis filed suit against the School Board, the Superintendent, and the Principal. The issue before the Supreme Court concerned only the plaintiffs’ Title IX claim against the School Board. In Gebser, the Supreme Court had addressed the standard for a Title IX cause of action arising from the sexual abuse of a student by an employee of a school district. In Davis, the Supreme Court would decide whether there could be a Title IX cause of action arising from sexual harassment of a student by another student. The plaintiff in Davis thus faced an initial hurdle not present in Gebser. While the plaintiff in Gebser went into court to litigate the exact “contours” of a Title IX cause of action already established in Franklin, the plaintiff

in Davis first had to persuade the Supreme Court that a Title IX cause of action based on sexual harassment of a student by another student even could be maintained. As the Court initially observed, “Here . . . we are asked to do more than define the scope of behavior that Title IX proscribes. We must determine whether a district’s failure to respond to student-on-student harassment in its school can support a private suit for money damages.”20 The Supreme Court concluded that a school district that receives federal funds may be liable for subjecting a student to discrimination in violation of Title IX “where the school district is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school’s disciplinary authority.”21 The Court added, “We thus conclude that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”22 The Supreme Court, having held that student-to-student sexual harassment is actionable against a school board under Title IX, attempted to reassure school officials that all was not lost. In a breezy observation, the Court advised that whether gender-oriented conduct rises to the level of actionable harassment “depends on a constellation of surrounding circumstances, expectations and relationships.”23 The Court went on to caution that damages are not available for simple acts of teasing and name-calling among schoolchildren. Rather, the Court observed, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect. Thus, the Supreme Court held that LaShonda Davis was entitled to her day in court against the Macon County School Board and sent the case back for trial. The dissenters were having none of it. Justice O’Connor wrote the opinion in Davis, as she had done in Gebser. This time, however, she was joined by the moderate justices, Stevens, Souter, Ginsburg, and Breyer; and it was the turn of the right-wing justices, Kennedy, Rehnquist, Scalia, and Thomas to dissent. It has been suggested that all of the justices except O’Connor should be pensioned off and that O’Connor, positioned as she is at a point exactly equidistant from the center and the right, should decide the cases by herself since she so often is the swing vote that carries the day. There is, of course, no left wing remaining on the Court. With the demise of Douglas, Brennan, and Marshall, the left vanished, perhaps forever. In Davis, Justice O’Connor looked both ways and swung center instead of right. Justice Kennedy, in dissent, maintained that the case actually was about federalism: “The federal government will have insinuated itself not only into one of the most traditional areas of state concern but also into one of the most sensitive areas of human affairs. This federal control of the discipline of our Nation’s schoolchildren is contrary to our traditions and inconsistent with the sensible administration of our schools.”24 On a more practical note, Justice Kennedy saw plaintiffs’ lawyers on the horizon: “The majority’s inability to provide


7 any workable definition of actionable peer harassment simply underscores the myriad of ways in which an opinion that purports to be narrow is, in fact, so broad that it will support untold numbers of lawyers who will prove adept at presenting cases that will withstand the defendant school districts’ pretrial motions. Each of the barriers to run-away litigation the majority offers us crumbles under the weight of even casual scrutiny.”25 There are, of course, always untold numbers of lawyers milling about. A recent case involving the Beaumont Independent School District reveals how plaintiffs’ lawyers and their school district opposing counsel are faring under Davis v. Monroe County Board of Education. III. The Progeny of Davis v. Monroe County Board of Education: A Federal District Court Case in Point The foregoing discussion of student-to-student sexual harassment began with Walton v. Alexander, but its progeny will not be discussed because it has none, at least not in the context of Texas public schools. The Fifth Circuit in Walton ruled that there could be no constitutional cause of action for student-to-student sexual harassment or abuse in the absence of a “special relationship,” which the Court found did not exist even in the setting of the residential Mississippi School for the Deaf.26 Although the Fifth Circuit virtually closed one door in Walton v. Alexander, the Supreme Court opened another in Davis. The Title IX progeny of Davis is where the action is. Wilson v. Beaumont Independent School District27 Ken Wilson is the alias for the victim of the alleged sexual abuse, and John Doe is the alias for the perpetrator. Wilson was a mildly retarded twelve-year-old enrolled in special education classes at Austin Middle School in the Beaumont ISD; John Doe was also a retarded twelve-year-old enrolled in the same classes. John Doe had a history of picking on Wilson. Eventually, however, Doe’s treatment went beyond the general bullying and mischief that had characterized their relationship. On September 7, 1999, an incident occurred when their teacher, Ms. Rinando, took the class to a restroom break. After calming the children down, Rinando noticed that Wilson and Doe were missing. Finally the teacher found the boys in the restroom. As the two came out of the restroom, fully clothed, the teacher noticed that Doe had an erection and that Wilson’s “eyes were big” with a look of surprise. The plaintiffs alleged that when Rinando asked Wilson what had happened, he indicated that Doe had asked him to perform oral sex on Doe, and that Doe had forced Wilson to have anal sex. Doe denied Wilson’s version of the event. The teacher then asked Wilson whether there had been sexual contact, and Rinando testified that Wilson then said that there had been no sexual contact. The plaintiffs, however, presented testimony that two other teachers said that Rinando told them that there had been sexual contact. Once again, this is a summary judgment case, so no judge or jury ever determined exactly what was true and what was not.

Rinando took the two boys to the office of the Assistant Principal. The evidence suggested that Rinando told the Assistant Principal that there had been no sexual contact. The school did not notify the parents. Rinando tried to keep Wilson and Doe separated in and out of class and continued a separated seating policy. Three days later, Wilson told his sister about the alleged sexual contact, and she reported it to her parents. Once Wilson’s mother learned that her son might have been sexually molested, she contacted Child Protective Services and the Principal. According to the Principal, various actions were taken including (1) talking with the students, (2) speaking with CPS, (3) calling the Beaumont Police Department, (4) interviewing and getting written statements from employees, (5) holding a meeting with Wilson and his parents, teachers, and administrators, and (6) transferring Doe to a new school. On the basis of the incident of September 7, and the alleged initial inaction on the part of the Principal and the Beaumont ISD, the Wilsons filed suit. These plaintiffs alleged, among other things, a violation of Title IX. The District Court began by quoting the standards for liability set forth by the Supreme Court in Davis: “Funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”28 The Court first addressed the issue of deliberate indifference. The Court recited the various actions that the teacher and administrators took in response to the incident. The Court observed that once the Principal became aware of the contact between the boys, he took significant steps to remedy the situation. The Court further noted, “Even assuming . . . that Defendants could have taken swifter and more appropriate action, there is no legal requirement of perfection.”29 Finally, the Court concluded that no reasonable jury could find that the defendants’ actions were clearly unreasonable. In the absence of deliberate indifference, the defendants’ were entitled to summary judgment. The Court next turned to the issue of the severity of the harassment. The Court observed that the plaintiffs had failed to show that the alleged sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the victim of access to the educational opportunities or benefits provided by the school. Although there was evidence of prior bullying, teasing, and name-calling by Doe, there were no other incidents of gender-related harassment. The Court noted that the plaintiffs were seeking to impose liability on the basis of one incident. Citing Davis, the District Court observed that although in theory a single instance of sufficiently severe one-on-one peer harassment could suffice, such was not the case in Wilson. Having considered both deliberate indifference and severity of harassment issues, the Court held as follows: “The Court concludes that a reasonable jury could not find that BISD and Principal Arnons were deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational


8 opportunities or benefits provided by the school. Because BISD and Principal Amons took reasonable steps to remedy the harassment, Defendants’ Motion for Summary Judgment on Plaintiffs’ Title IX claim is granted.”30 Wilson is a perfect example of a District Court carefully applying the test for potential liability established by the Supreme Court. Contrary to Justice Kennedy’s alarmist dissent in Davis, the untold number of plaintiffs’ lawyers in Wilson were not able to withstand the defendant school district’s motion for summary judgment. Conclusion With Wilson, the discussion has come full circle to the basic lessons of Doe v. Taylor ISD. The outcome of sexual harassment cases usually turns upon what the school district and its administrators actually did in response to an allegation of sexual harassment or abuse. Under Doe v. Taylor ISD, the test for supervisory liability under the Fourteenth Amendment requires actual knowledge, deliberate indifference, and causation of injury to the student. Under Gebser v. Lago Vista ISD, school district liability under Title IX requires actual knowledge on the part of an official who has authority to address the alleged discrimination and to institute corrective measures, and a response that amounts to deliberate indifference. Under Davis v. Monroe County Board of Education, school district liability requires that the district be proven deliberately indifferent to sexual harassment, of which the district has actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school. Perhaps the final question is that once posed by a school board member at a workshop: “So what are we to do?” The three lessons set forth above in the discussion of Doe v. Taylor ISD hold up pretty well in light of all of these cases. The first lesson is to investigate, document, and take appropriate action. The facts of different situations will vary, but certain basic approaches usually will apply: (1) talk to the District’s lawyer before beginning the investigation; (2) interview the alleged victim and the parents; (3) interview the person accused of the harassment; if the accused is another student, interview that student’s parents; (4) interview any witnesses or other persons who have information about the situation; (5) separate the alleged victim from the person accused; (a) if the person accused is an employee, suspend the employee — with pay in the case of a contractual employee — pending the investigation; (b) if the accused is another student, consider suspending the student or removing the student to an alternative education program if there is evidence of misconduct that warrants suspension or removal; (6) notify Child Protective Services and/or local law enforcement if there is cause to believe that abuse has occurred; (7) consider termination of an offending employee or further disciplinary action of an offending student. The second lesson is to remember that in the absence of certainty, listen to the kid who claims to have been abused. The third lesson is to remember that although the courthouse door is open in these cases, the courts have

placed a demanding burden upon the plaintiffs once they get inside the courthouse. Finally, given these lessons, try to get a pretty good night’s sleep. ENDNOTES  1. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir. 1994).   2. Skip Hollandsworth, “The Seduction of Jane Doe,” Texas Monthly, November 1994, at 117.  3. Taylor, 15 F.3d at 454.  4. Harlow v. Fitzgerald, 102 S. Ct. 2727, 2738 (1982).  5. Gebser v. Lago Vista Indep. Sch. Dist., 118 S. Ct. 1989 (1998).   6. 20 U.S.C.A. § 1681(a)(2000).  7. Cannon v. Univ. of Chicago, 99 S. Ct. 1946 (1979).  8. Franklin v. Gwinnett County Pub. Sch., 112 S. Ct. 1028 (1992).  9. Gebser at 1995. 10. Id. at 1999. 11. Id. at 2000. 12. Id. at 2004. 13. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211 (5th Cir. 1998). 14. Id. at 291. 15. Doe ex. rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380 (5th Cir. 2000). 16. Id. at 388. 17. Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1995). 18. Within the past two months, the Fifth Circuit has recognized a second exception to the theory that the state is not required to guarantee certain minimal levels of safety and security to its citizens. See McClendon v. City of Columbia, 258 F.3d 432 (5th Cir. 2001). In that case, the Fifth Circuit officially adopted the “state created danger” theory as a second limited circumstance under which the due process clause imposes an affirmative duty on the state to protect certain individuals, in addition to the “special relationship” theory. For a general overview of the requirements of the state created danger theory in the sexual abuse context as well as other school contexts, see “Into the Snakepit: Section 1983 Liability Under the State Created Danger Theory for Acts of Private Violence at School,” by Eric W. Schulze and T. J. Martinez, vol. 104 West Ed. L. Rptr. (Dec. 1995). 19. Davis v. Monroe County Bd. of Educ., 119 S. Ct. 1661 (1999). 20. Id. at 1669. 21. Id. at 1673. 22. Id. at 1675. 23. Oncale v. Sundowner Offshore Serv., 118 S. Ct. 998 (1998), quoted in Davis v. Monroe County Bd. of Educ., 119 S. Ct. 1661 (1999). 24. Davis, 119 S. Ct. at 1678. 25. Id. at 1687. 26. See note 18. 27. Wilson v. Beaumont Indep. Sch. Dist., 144 F. Supp. 2d 690 ( E.D. Tex. 2001). 28. Davis, 119 S. Ct. at 1661 (1999), quoted in Wilson, 144 F. Supp. 2d at 692. 29. Wilson, 144 F. Supp. 2d at 694. 30. Id. at 696.


9

LAW DAWG

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

DEAR LAW DAWG: We are wondering if it is legal to require that cheerleaders must be orphans. We have discovered that the problem with cheerleaders is never the cheerleaders – it is the parents. So we would like to add the following to our cheerleader application: ARE YOU AN ORPHAN? IF YES, YOU MAY CONTINUE WITH THIS APPLICATION. IF NO, FUGGEDABOUTIT. ASK YOUR PARENTS TO GET YOU INVOLVED IN SOME OTHER ACTIVITY. What do you think, Dawg? CREATIVE SOLUTIONS TO TOUGH PROBLEMS. DEAR CREATIVE: We think you have lost your mind. DEAR DAWG: We had a person apply to work for us as a volunteer, and she seemed perfectly OK. We did a criminal records check, background check, and were ready to put her to work. But when we explained that volunteers had to comply with our dress and grooming regulations, the lady balked. This would mean she would have to remove the bar that runs through her nose, and the six or seven rings around the eyebrows and lips. We insist that teachers, staff and volunteers remove any such facial jewelry while they are at school. Well, the lady insisted that this was part of her religion. She claims she is a member of the Church of Body Modification and that we would be discriminating against her religion if we refused to accept her in her modified state. What gives with this???? NEVER HEARD OF THAT ONE. DEAR NEVER HEARD: There is such an organization, and you can find them at www.churchofbodmod.org. But not every organization that calls itself a “church” is a religion, entitled to legal protection. If this organization does qualify as a religion, then its adherents would be entitled to reasonable accommodation of those practices required by the religion. This could include waivers as to customary dress and grooming regulations. Jewish men must be permitted to wear yarmulkes, despite bans on headgear, and Catholic nuns must be allowed to wear their traditional habits, even if it would normally violate a dress code. But we sort of doubt that this group falls into the same category. We think you ought to stick to your standards until someone presents you with solid evidence that they qualify as a religious organization, and that the piercing of certain parts is required by the faith. In the meantime, just call me “skeptical.” DEAR DAWG: Will you please tell me what in tarnation is “the instant case”? Every time I read a court case or hear a presentation

from a lawyer, I hear a reference to “the instant case.” I’ve been involved in my share of litigation, Dawg, and I’m here to tell you that none of those cases were anywhere close to instant. We once had a case heard by our school board in the Seventies, decided by the Commissioner of Education in the Eighties and finally resolved by the courts in the Nineties. Our desegregation litigation is still not over and it began during the LBJ administration. We had one case at T.E.A. that went through three hearing officers before we got a decision. And one of our special ed disputes involves a kid who is set to graduate this year, but we are still in litigation over whether or not she should have been a crossing guard in the 4th grade. So where exactly do you get these “instant cases”? THOUGHT ABOUT THIS IN THE FAST FOOD LINE. DEAR THOUGHT ABOUT THIS: Webster’s defines “instant” as meaning “present, current.” So the “instant case” simply means “this case here – this one right here that we’re talking about – not the other case, but this case – the instant case.” We think your conversation would sparkle if you would find ways to work this into daily discussions. For example, at lunch try saying “the instant enchiladas are among the best I’ve ever had.” Or “the instant dessert is to die for.” Unlettered persons may take offense at your characterization of the dessert as “instant” if they have spent some time preparing it. But the lawyers at the table will know exactly what you mean. DEAR DAWG: We have a bus driver who misses work more often than she is here. This lady spends more time with her kids in court than a judge. So far as we can tell she has six children. All six are in trouble with the law, regulars in juvenile court. We have finally had enough of this, and so we let the lady go last week. We are sorry about her family troubles, but we have got to have a regular driver on that route. We don’t give our bus drivers contracts – they are at-will. So we expected no legal problems. But now we have gotten a letter from a lawyer telling us that we violated the Family Code. What’s this about? NOTHING IS AS SIMPLE AS IT SEEMS. DEAR NOTHING: You may have violated the law. Section 51.116 of the Family Code prohibits an employer from terminating the employment of an employee because the employee is required to attend juvenile court proceedings concerning the employee’s child. This law is informally known as The TDFA – Tenure by Dysfunctional Family Act. If the bus driver was required to attend juvenile court proceedings, and your bus driver was let go because of those absences, it looks to us like you have to put her back to work. Section 51.116 also authorizes the employee to recover damages (up to six months compensation) plus attorney’s fees.

If you have questions you want Law Dawg to answer, send them to the Digest at the Austin address, attention Law Dawg.


10

LEGAL DEVELOPMENTS

THE FIFTH CIRCUIT COURT OF APPEALS

The University Professor Was Subjected To Same-Sex Sexual Harassment By His Supervisor; Further, The University Retaliated Against The Professor For Filing Sexual Harassment Complaints Against His Supervisor The professor began work at the dental branch of the university in 1993. He became a tenure-track professor in 1995. His supervisor was a world renown periodontist whom the professor had known socially prior to his employment with the university. In June of 1996, the professor and his supervisor participated in a three-day conference in Mexico. The supervisor arranged for the professor to accompany him just one day before the conference and had the professor stay with him in his hotel room. While in the hotel room, the supervisor made sexual advances. The supervisor also told the professor that (1) they had to get along, and (2) that the supervisor only wanted to know the professor better. After the trip, the supervisor promised the professor that the incidents that occurred in Mexico would not happen again. Despite the supervisor’s assurances, incidents of sexual harassment allegedly continued at other conferences they attended, as well as at the university. As a result of the supervisor’s advances, the professor canceled conference engagements which he knew the supervisor also would attend. In addition to sexual advances, the supervisor also threatened the professor. At one time, the supervisor raised his hand at the professor and stated that the professor could not work in the department if he continued to reject the sexual advances. On another occasion, the supervisor allegedly stated that the university would defend him against any complaint brought against him. He also regularly admonished the professor not to tell anyone about the advances. On April 23, 1997, the professor submitted a detailed, written sexual harassment complaint to the university. An investigatory panel was convened to look into the complaint. During the investigation, the supervisor admitted that he had sexually propositioned the professor on two trips. Nevertheless, the panel issued a decision stating that it was unable to determine whether or not the supervisor had violated the university’s sexual harassment policy. Four days after the decision, the professor requested “protection against further harassment and retaliation” by the supervisor. On July 16, 1997, the dean of the university’s dental school received a copy of a sexual harassment complaint that the professor filed with the Equal Employment Opportunity Commission (EEOC). In a meeting between the dean, the supervisor, and the professor,

the dean asked the professor to prepare a memo describing the parameters under which he would feel comfortable working in the department. When the professor refused to do so, the dean asked the supervisor to prepare the memo. The supervisor later provided the professor with a memo outlining guidelines concerning how they would work together. In response to the charges of retaliation by the professor, the university hired an outside attorney to conduct an investigation. According to the university, the professor refused to cooperate and the attorney determined that no retaliation had occurred. After the professor’s April 1997 and July 1997 complaints, the university allegedly (1) placed the supervisor in charge of monitoring any further harassment, (2) ostracized the professor, (3) barred him from entering the dental school while he was on unpaid leave, (4) removed his name from his office door and from the letterhead while he was on unpaid leave, (5) stripped his duties as principal investigator on certain projects, (6) prevented him from serving on mock oral boards and on thesis committees, (7) refused to allow him to teach seminars in Spain which would have provided him $2,000, (8) ceased paying him a $2,500 stipend, (9) refused to grant him paid leave, (10) denied his request for an extension of unpaid leave, and (11) treated his failure to return after his leave of absence as a resignation. The professor filed suit alleging that he was harassed by his supervisor in violation of Title VII of the Civil Rights Act of 1964 (Title VII). He also claimed that the university retaliated against him for lodging complaints with the university and the EEOC. Following a jury trial, the trial court entered judgment for the professor and awarded compensatory damages, back pay, front pay, attorney’s fees, and costs totaling nearly $700,000. The university appealed. Title VII is a federal statute that prohibits discrimination in employment on the basis of sex and prohibits sexual harassment in the workplace. The federal statute also prohibits same-sex sexual harassment as alleged in the professor’s lawsuit. In addition, Title VII prohibits retaliation for raising complaints of sexual harassment. To state a claim for retaliation, a plaintiff must establish that (1) he engaged in a protected activity (e.g., complaining of sexual harassment), (2) he suffered an adverse employment action, and (3) a causal connection exists between the protected activity and the adverse employment action. The university first argued that the professor had failed to show that he suffered from an adverse employment action in retaliation


11 for his sexual harassment complaints. The trial court instructed the jury that “an adverse employment action is a significant change in employment status and includes discharge, demotion, refusal to promote, denial of leave request, change in compensation, or a major change in responsibilities.” The appeals court determined that the following amounted to adverse employment actions: (1) the discontinuation of the professor’s $2,500 stipend, (2) the denial of his request for paid leave, (3) the denial of his request for an extension of unpaid leave, and (4) the professor’s ultimate termination. Further, the evidence was sufficient for the jury to believe that the university took those adverse actions in retaliation for the professor’s sexual harassment complaint. The university next argued that the professor’s evidence was insufficient to demonstrate that he was subjected to a “hostile work environment.” To prevail on his sexual harassment claim under Title VII, the professor had to prove that a reasonable person in his position would have found his work environment hostile or abusive. Whether an environment is hostile or abuse depends on such factors as the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee’s work performance. Discriminatory verbal intimidation, ridicule, and insults may be sufficiently severe to alter the conditions of the victim’s employment and create an abusive working environment that violates Title VII. In light of those factors, the appeals court found that the professor had demonstrated that he was subjected to a hostile work environment. The evidence showed that the supervisor engaged in repeated, aggressive sexual advances and threats. The harassment was both verbal and physical in nature. As a result of the harassment, the professor suffered emotional distress and psychological problems. He also avoided engagements and conferences at which the supervisor was also present. The university also claimed that it had established its affirmative defenses to the sexual harassment claims. Under Title VII, where the harassment does not result in a tangible employment action, the defendant may offer the following affirmative defenses: (1) the employer exercised reasonable care to prevent and correct promptly any such sexual harassment, and (2) the employee reasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. The appeals court determined that the evidence supported the jury’s decision that the university had not established either of those affirmative defenses. The record showed that the university failed to discipline the supervisor or otherwise acknowledge that sexual harassment had occurred. No reprimand or warning was given to the supervisor, even though other such warnings and reprimands had been given in other cases at the university. Further, the evidence showed that although the professor waited eight to nine months after the first instances of sexual harassment to complain, the appeals court determined that he was justified in delaying his complaint given his concerns about his supervisor’s influence at the university. The appeals court upheld the jury’s verdict that the professor had suffered sexual harassment and retaliation in violation of Title VII. Mota v. The University of Texas Houston Health Science Center, Dkt. No. 00-20009 (5th Cir. 2001) (not yet reported).

FEDERAL DISTRICT COURTS

The Allegations In The Employee’s Lawsuit Against The School District Failed To State A Violation Of Her Constitutional Right To Due Process; However, The Woman Was Entitled To Amend Her Lawsuit To Attempt To Allege Such A Violation; The School District Was Entitled To Sovereign Immunity On The Woman’s State Law Claim In June of 1997, the school district’s superintendent allegedly demoted the executive planner in the real estate division to a position as a special administrative assistant in the transportation division. According to the employee, the demotion occurred despite the objections of her supervisors. As a result, the employee attempted to appeal the superintendent’s action through the district’s grievance procedures. However, the employee allegedly was denied a “step 2” hearing and was unsuccessful at the “step 3” grievance hearing. She was unable to appeal her demotion because the district could not produce the tape recording of the “step 3” hearing. In July of 1999, the employee filed a lawsuit against the school district alleging (1) violations of her rights to substantive and procedural due process under the Fourteenth Amendment to the United States Constitution, (2) tortious interference with her employment contract, and (3) “interference with contract based upon race.” The district filed a motion requesting that the court dismiss the lawsuit and alleged that the employee’s allegations were insufficient to state claims upon which relief could be granted. With respect to the employee’s substantive due process claim, the court observed that the employee had to show that she had a protected property interest in her employment, and that the termination of that interest was arbitrary and capricious. Similarly, a claim for procedural due process violations required the woman to show a protected property interest in her employment, and that the termination of that interest was effected without the requisite procedural protections. An employee who is deprived of a significant protected property interest is entitled to either a predeprivation or postdeprivation hearing, depending on the circumstances. Further, the employee must receive notice, a timely hearing, and an opportunity to respond. A school district only can be held liable for a constitutional violation under 42 U.S.C. § 1983 if a policy or custom of the school district is the moving force behind the violation of a constitutional right. The district argued that the woman had not alleged a protected property interest or that any due process violation occurred as a result of a district policy or custom. According to the district, the woman also had failed to allege that the district’s actions were arbitrary or capricious. The trial court agreed that the woman had failed to raise allegations sufficient to state due process claims. The court observed that because Texas is an employment at-will state, employment relationships may be terminated at will by either party absent a specific contract to the contrary. Thus, to prevail, the employee had to demonstrate that such a contract existed. In this case, the woman made references to a contract of employment in her


12 lawsuit. However, she did not clearly allege that the contract precluded a transfer or demotion, or that any economic harm arose from a decrease in salary or fringe benefits. The court, therefore, concluded that the allegations in the lawsuit were inadequate to state a claim for the denial of due process. The court, likewise, concluded that the employee had failed to plead sufficient factual allegations of any district custom or policy that actually caused her injuries. Under Texas law, the final policymaking authority in an independent school district rests with the district’s trustees. An employee of the governmental entity (e.g., the superintendent) is not a policymaker unless the governmental entity, through its lawmakers, has delegated exclusive policymaking authority to that employee. After reviewing the employee’s lawsuit, the court determined that the woman’s allegations did not contain the fundamental allegations to put the district on notice as to the basis of the employee’s claims regarding a district policy or custom. While the employee alleged that the superintendent caused her demotion, she did not allege that the school board had delegated its policymaking authority to the superintendent to take such action. Further, there was no specific allegation of any policy statement, ordinance, regulation, or decision that was officially adopted by a district policymaker. The lawsuit’s general allegations concerning the district were conclusory and did not meet the basic requirements for pleading school district liability under § 1983. The court also considered the woman’s sate law claim for tortious interference with contract. The court concluded that such a claim against a school district was barred by sovereign immunity. Under the doctrine of sovereign immunity, the school district could not be held liable for tort claims (i.e., death, personal injuries, or property damage) absent a specific legislative enactment. While the Texas Tort Claims Act does provide for school district liability under some circumstances, it does not allow liability for claims arising out of intentional torts, such as tortious interference with contract. Because the school district was entitled to sovereign immunity, and tortious interference with contract is an intentional tort, the court dismissed that claim. Although the employee’s claim for tortious interference with contract was dismissed, the court allowed the woman to amend her lawsuit and attempt to cure the pleading deficiencies in her § 1983 claims. McAll v. Dallas ISD, Dkt. No. 3:99-CV-2118-L (N.D. Tex. 2001) (not yet reported).

TEXAS COURTS OF APPEAL Substantial Evidence Existed To Terminate The Teacher’s Contract; The Teacher Who Previously Had Been Admonished About Inappropriate Contact With Female Students, Allegedly Engaged In A Sexual Relationship With A Female Student; The Decision Of The Commissioner Of Education To Uphold The Termination Was Not Based On Procedural Errors; Further, The Teacher Did Not Allege Any Independent Cause Of Action That Would Have Allowed Him To Have A Jury Trial

During the Fall of 1995, school district personnel received reports that the teacher was having an inappropriate relationship with a female student. The teacher was advised of the allegations and, in a memorandum from his principal, directed not to (1) have contact with any female student that could be perceived as inappropriate, (2) question or attempt to contact any students to discuss the allegations that had been made, and (3) display any behaviors that could be interpreted as retaliatory against students who brought forth charges. The memorandum expressly admonished the teacher that “[f]ailure to comply with these directives may result in a variety of disciplinary actions up to and including termination.” Less than a year later, the parents of another female student, A.C., reported to district personnel that A.C. and the teacher were involved in a sexual relationship. The local police department began an investigation that same day. In a statement A.C. made to the police chief, she described distinguishing marks on the teacher’s body as well as the teacher’s bedroom and certain items in his room. A few weeks later, the police arrested the teacher at his home. A search of his bedroom revealed the items that A.C. had described. A body search of the teacher also showed the distinguishing marks the girl had described. Investigators also determined that, between September of 1994, and mid-March 1996, 717 telephone calls were placed from the telephone number of A.C.’s residence to the telephone number at the teacher’s residence. In late February of 1997, the district’s board of trustees proposed the termination of the teacher’s employment contract. The teacher challenged the proposed termination. An independent hearing examiner conducted a hearing and issued findings of fact and conclusions of law recommending that the teacher’s employment contract be terminated. In July of 1997, the school board adopted the hearing examiner’s recommendations. The teacher appealed to the Commissioner of Education, who ultimately affirmed the board’s decision. The teacher appealed the Commissioner’s decision by filing suit in state district court. However, the court upheld the decision to terminate the teacher’s employment contract. The teacher then appealed the trial court’s ruling. On appeal, the teacher raised numerous points of error. The main issues presented to the appeals court were whether (1) the Commissioner’s decision was supported by substantial evidence, (2) the Commissioner’s decision was based on procedural errors or irregularities, and (3) the trial court erred in denying the teacher’s motion for a jury trial. The appeals court first considered the teacher’s argument that substantial evidence did not support the termination of his employment contract. “Substantial evidence” generally requires only a finding of some evidence to support the decision being challenged. In this case, the student testified before the hearing examiner that she and the teacher had engaged in a sexual relationship. The girl testified about their encounters and gave detailed descriptions of his home. She also testified about many late night telephone conversations with the teacher. The appeals court determined that the girl’s testimony constituted substantial evidence to support the teacher’s termination. The court of appeals next considered whether the Commissioner’s decision was based on procedural errors and irregularities. Specifically, the teacher complained of (1) the alleged withholding of exculpatory evidence, (2) the alleged failure to adequately develop the record before the hearing examiner, (3) the exclusion of evidence regarding alleged sexual abuse of A.C. by her father, and (4) the failure to have A.C. evaluated by a licensed psychologist. The appeals court, however, determined


13 that it lacked jurisdiction over those four alleged errors because the teacher had failed to raise them as grounds for relief in his petition for review before the Commissioner, as required by the Texas Education Code. The appeals court determined that it did have jurisdiction to consider whether (1) the principal’s directive to refrain from inappropriate contact with female students was overly broad, and (2) the teacher’s contract properly could be terminated after it had been renewed. First, the court determined that the principal’s directive “to avoid any contact with any female student that may be perceived as inappropriate” was not overly broad. There was no question that sexual activity with a minor female student would be perceived as inappropriate and fell within the prohibitions of the directive. Furthermore, a reasonable person in the teacher’s position, who previously had been accused of having sexual relations with a minor female student, would certainly understand that engaging in late night telephone conversations with a student would be perceived as inappropriate. The appeals court also rejected the teacher’s claim that his termination was improper because his proposed termination occurred after his contract had been renewed. The appeals court observed that, generally, a teacher’s contract cannot be terminated for actions committed in a prior school year when the district (1) was aware of such actions, and (2) took no action after learning of the conduct. However, in this case, the district did take action against the teacher when it learned of his relationship with A.C. by placing him on administrative leave with pay. Further, the district did not take any affirmative step in renewing the teacher’s contract. Rather, it merely failed to take action before the deadline for nonrenewing contracts had passed, while it investigated the allegation against the teacher. Accordingly, there was no procedural error in the proposed termination. The appeals court also disagreed with the teacher’s claim that the trial court improperly denied his motion for a jury trial. Generally, in an appeal under the substantial evidence rule, the issue is one of law and there is no need for a trial of the facts by a judge or jury. However, the teacher could have asserted independent causes of action which would have entitled him to a jury trial. A review of the teacher’s lawsuit, however, did not show any independent causes of action. The teacher did not dispute that his lawsuit contained no specific reference to any independent causes of action. Further, his vague references to “due process” and “fundamental fairness” did not put the district or the Commissioner on notice of any independent causes of action. The appeals court determined that substantial evidence existed to terminate the teacher’s contract and affirmed the judgment of the trial court in favor of the district. Clark v. Commissioner of Education, Dkt. No. 14-99-00088-CV (Tex. App. – Houston 2001) (unpublished).

The Court Of Appeals Upheld The Woman’s Conviction Of Possession Of Cocaine Within A Thousand Feet Of An Elementary School The police officer received an anonymous tip that two men were selling drugs late at night near an elementary school. The location was known by the officer as a narcotics-trafficking area. Upon arrival at the scene, the officer found several individuals, two of whom matched the description he had been given. The officer recognized one of the men as a drug dealer who had been

arrested previously. A woman was sitting in the car with the known drug dealer, and she made suspicious gestures when the officer approached. The officer ordered everyone to stay where they were while backup officers arrived. The woman attempted to leave the scene but was escorted back to the car. Later, while the officers tried to identify each of the suspects and run warrant checks, the woman suddenly seized her purse and began to run toward a nearby house. As she ran, she reached inside the purse. One of the officers grabbed the woman and they both fell to the floor. As they fell, crack cocaine fell out of the purse and more cocaine fell from the woman’s hand as the officers escorted her back to the scene. As a result of the incident, the woman was found guilty of possessing cocaine within a thousand feet of a school, and sentenced to seven years in prison and a $10,000 fine. The woman appealed and argued that the evidence obtained at the scene should have been suppressed (i.e., not provided to the jury) because the officer did not have a legal basis for initially detaining her. The court of appeals observed that a temporary detention is justified when the detaining officer has specific facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. In this case, the woman’s detention was lawful given the officer’s (1) familiarity with the location as a narcotics trafficking area, (2) experience with one of the suspects as a known drug dealer, (3) observations of the woman’s suspicious behavior, and (4) the anonymous tip concerning drug dealing. The appeals court upheld the woman’s conviction of possession of cocaine within a thousand feet of an elementary school. White v. The State of Texas, Dkt. No. 03-00-00106-CR (Tex. App. – Austin 2001) (unpublished).

The School District Was Not Entitled To Judgment In Its Favor Prior To Trial On The Employee’s Workers’ Compensation Lawsuit; Fact Issues Remained As To Whether The School District Was Prejudiced When The Employee Failed To Name The School District As A Party To The Lawsuit In A Timely Manner The school district employee sustained an injury while at work and, as a result, filed a workers’ compensation claim with the Workers’ Compensation Commission. After the Commission declined to give her the relief she requested, the woman attempted to appeal the Commission’s decision by filing suit in state court. Under the Texas Labor Code, a party may seek judicial review by filing suit in the appropriate court not later than the 40th day after the date on which the decision of the appeals panel was filed. On November 14, 1997, the woman filed suit in the district court appealing the decision dated October 6, 1997. While the employee filed the appeal within the 40-day period, she incorrectly filed it against the Texas Association of School Boards (TASB) instead of the school district. Further, she did not file an amended petition naming the district until well over a year after filing her original petition. TASB and the school district filed a joint motion requesting that the court dismiss the case and asserted that the woman’s failure to name the district in her lawsuit within the 40-day time period rendered the court without jurisdiction over the lawsuit. The trial court agreed and entered judgment in favor of the district and TASB. The woman then appealed.


14 First, TASB argued that because it was not the correct party to the lawsuit, the court had no jurisdiction to entertain the suit against it. The appeals court agreed and affirmed the trial court’s judgment in favor of TASB. The second issue on appeal was whether the 40-day statute of limitations could be tolled (i.e., delayed) by the doctrine of “misidentification” when a party appealing a decision of the workers’ compensation board files suit within the statutory time period but does not name the correct defendant within that time period. Under the doctrine of “misidentification,” the required period for filing suit generally may be tolled if the plaintiff can show that the correct defendant was “cognizant of the facts, was not misled, or placed at a disadvantage in obtaining relevant evidence to defend the suit.” The school district argued that the woman’s failure to name the district as a party when she filed the workers’ compensation appeal in the trial court deprived the court of jurisdiction. The appeals court disagreed. The limitations period could be tolled if the doctrine of “misidentification” applied. Whether the limitations period should be tolled depended on whether the petition gave the school district fair notice of the woman’s appeal. In this case, the appeals court determined that fact issues existed as to whether (1) the district received fair notice of the woman’s appeal, (2) the district was placed at a disadvantage in obtaining relevant evidence to defend the action, (3) a business relationship existed between the district and TASB, (4) the district was fully cognizant of the facts underlying the suit, and (5) the district could have been misled as to the basis of the lawsuit. Because fact issues existed regarding whether the district was prejudiced by the employee’s failure to name it as a defendant in her original petition, the trial court improperly entered judgment in favor of the district. Bass v. Texas Association of School Boards, Dkt. No. 13-99-820-CV (Tex. App. – Corpus Christi 2001) (not yet reported).

The University Officer’s Actions In Pursuing An Assault Suspect Were Discretionary; The University And The Officer Were Not Liable For Injuries That Resulted When The Suspect’s Vehicle Collided With Another Vehicle During The Pursuit On February 9, 1991, a fight occurred at the university campus. One of the suspects involved in the fight fled in his vehicle, although campus police officers instructed him to remain at the scene. As the suspect drove away, one of the officers turned his patrol car in the path of the suspect’s vehicle. The suspect drove around the officer’s car. The officer radioed a second officer who was in a position to intercept the suspect and instructed the second officer to stop the man. The second officer activated his overhead lights and siren and pursued the suspect. During the chase, the suspect’s vehicle ran a red light and collided with another car. A female passenger of that car sustained injuries in the collision. The woman sued the two university police officers and the university, claiming negligence and violations of her civil rights. The two officers requested judgment in their favor prior to trial based on the defense of official immunity. The university also requested judgment prior to trial based on sovereign immunity. Under Texas law, government employees generally are entitled to “official immunity” when performing discretionary duties in good faith, as long as they are acting within the scope of their authority. Further, when official immunity shields a governmental employee from liability, sovereign immunity shields the employer

from liability as well. The trial court entered judgment in favor of the officers and the university, and the woman appealed. On appeal, the appeals court ruled that the officers’ evidence did not establish that they were acting in good faith. The Texas Supreme Court, however, reversed that decision and returned the case to the appeals court to consider whether the officers’ actions in pursuing the suspect were discretionary, thus entitling them to official immunity. The court of appeals observed that if an action involves personal deliberation, decision and judgment, it is discretionary. In contrast to discretionary actions, “ministerial” actions require mere obedience to orders or the performance of a duty to which the actor has no choice. The woman argued that because the second officer was ordered to chase the suspect by the first officer, his actions were ministerial. The appeals court disagreed and reasoned that although the second officer initially was ordered to pursue the suspect, the conduct of the pursuit was left to the second officer’s discretion. Furthermore, the second officer testified that he had decided to discontinue the pursuit before the collision occurred. Consequently, the officer was engaged in a discretionary act at the time of the collision. Because the pursuit of the suspect’s vehicle was a discretionary act, the appeals court determined that the officers were entitled to official immunity. In turn, the university was entitled to rely on that defense to establish its right to sovereign immunity. The appeals court affirmed the trial court’s judgment in favor of the officers and the university. Clark v. University of Houston, Dkt. No. 14-96-00005-CV (Tex. App. – Houston 2001) (not yet reported).

The School District Was Not Immune From Suit Stemming From A Car Accident That Killed An Eight-YearOld Student; The Bus Driver’s Actions In Honking The Horn To Signal The Girl To Cross The Street Constituted The “Use Or Operation Of A Motor Vehicle”; Although The Driver Of The Car That Struck The Student Was Intoxicated, The Bus Driver’s Actions May Have Contributed To The Accident On the afternoon of February 9, 1999, a school district bus stopped to drop off the eight-year-old girl and her cousin. The school bus was parked across the street from the girl’s home so the two children had to cross the street to get to the house. The girl’s cousin crossed the street safely and the bus driver honked the horn to signal the girl to cross as well. However, the girl was struck by an oncoming car and later died as a result. The driver of the car that struck the girl was intoxicated at the time of the accident. The girl’s mother filed suit against several defendants, including the school district. The woman alleged that the district “was negligent in the operation or use of a motor vehicle” and was liable pursuant to section 101.102(1)(A) of the Texas Tort Claims Act (“the Act”). According to the mother, the bus driver (1) failed to use safe and appropriate procedures during the transportation process, which included unloading school children, and (2) used the horn to signal the girl to cross when it was not safe for her to do so. The district filed two motions prior to trial requesting that the court dismiss the suit. The district argued that it was immune from suit and its immunity was not waived by the bus driver’s


15 actions. Under the Texas Tort Claims Act, school districts are immune from liability for all torts (i.e., claims involving death, personal injuries, or property damages), except for those arising from the use or operation of motor vehicles. In this case, the district argued that the operation or use of a motor vehicle did not cause the girl’s death. According to the district, the actions of the bus driver that were complained of involved only the supervision or control of children, in which case the school district would retain its immunity. The trial court denied the district’s motions and the district appealed. On appeal, the girl’s mother argued that (1) the district’s “use” of the school bus was to transport students, and (2) the process of transporting students did not end until the children had crossed the street. Further, the mother contended that the bus driver’s use of the horn to signal the girl to cross the street was (1) evidence that such a “use” or “operation” of the bus contributed to the accident, and (2) did not comply with procedures outlined in the district’s bus driver training manual. Thus, although drunk driving by the car’s driver was a factor contributing to the accident, the incident could have been prevented if the bus driver had followed standard procedures as described in the bus driver training manual. The appeals court determined that this case was similar to another school bus case in which a student exited a bus and was crossing the street when a car hit her. The plaintiffs in that case alleged that the bus driver did not activate the flashers to signal that students were exiting the bus, which both the bus driver training guide and Texas traffic statutes required. The court in that case denied the district’s request for judgment prior to trial. The court determined that any failure to activate the flashers would have constituted an “act or omission arising from the operation or use” of a motor vehicle as required to impose liability on the district. Similar to using the bus’ flashers, the driver in this case allegedly attempted to take the affirmative action of honking the horn to help the student cross the street. According to the appeals court, the decision made by the driver to honk the horn was contrary to the driver’s training and could have contributed to the accident. The district failed to prove that it was immune from suit because the bus driver’s actions constituted the “use or operation of a motor vehicle.” Austin ISD v. Gutierrez, Dkt. No. 03-00-00645-CV (Tex. App. – Austin 2001) (not yet reported).

Because Disclosure Of The Settlement Agreement Was Mandatory Under The Texas Public Information Act, The Community College Did Not Breach The Settlement Agreement When It Disclosed The Agreement To The Local Newspaper The student attended and worked part-time at the community college from 1993 to 1998. In 1996, the student brought a federal lawsuit against the community college, but the suit was settled before going to trial. The settlement agreement contained a confidentiality clause that stated, in part, that the terms of the settlement were confidential and could not be disclosed without prior written consent of the parties or unless “compelled by law.” Two years after the parties entered into the settlement agreement, a reporter for the local newspaper requested a copy of the agreement from the community college. The student would not provide written consent for disclosure of the agreement and demanded that the community college seek an opinion from the Texas Attorney General on whether it could disclose the agree-

ment to the newspaper. The community college sought such an Attorney General opinion, and the Attorney General ruled that it had to provide a copy of the document to the newspaper. In accordance with the Attorney General’s opinion, the community college disclosed the settlement agreement to the reporter. Shortly thereafter, an article appeared in the newspaper detailing the amount of the settlement between the student and the community college. The student then made a demand for damages claiming that the college breached the settlement agreement and made a false statement to the newspaper that the student had wanted the settlement terms kept confidential. In response, the community college sought a declaratory judgment in state court on the issue of whether it breached the settlement when the Attorney General ruled that it had to disclose the document to the newspaper. In response, the student filed a claim for breach of contract. Both parties later filed motions seeking judgment in their favor prior to trial. The trial court ruled that although the community college had breached the settlement agreement when it disclosed it to the newspaper, the student was not entitled to damages. Both parties appealed. The court of appeals first addressed whether the community college breached the settlement agreement when it disclosed the agreement to the newspaper. The community college argued that because it was compelled to do so pursuant to the Attorney General’s opinion, the disclosure was not a breach of contract. The appeals court observed that the Texas Public Information Act (the Act) reflects the state policy that the public is entitled to have access to information on government affairs, unless the information expressly is excepted from disclosure under the Act. Under the Act, the public generally is entitled to disclosure of “a settlement agreement to which a governmental body is a party,” and no exception to such disclosure existed in this case. Since no statutory exception to disclosure existed, it was mandatory for the community college to provide the settlement agreement to the newspaper. According to the appeals court, the disclosure was “compelled by law” under the terms of the agreement. Consequently, the community college did not breach the agreement. The appeals court reversed the judgment of the trial court and ruled that the community college committed no breach of contact and that disclosure of the settlement agreement was mandatory under the law. Thomas v. El Paso County Community College District, Dkt. No. 08-00-00266-CV (Tex. App. – El Paso 2001) (not yet reported).

TEXAS ATTORNEY GENERAL A Commissioners Court May Not Delegate Its Authority To Sell, Lease, Or Otherwise Dispose Of The County’s School Lands To A Local School District A state senator recently asked the Attorney General whether a county commissioners court could delegate its authority over county school lands to the board of trustees of a local school district if the district agrees to waive the liability of the commissioners court for actions taken in connection with the school lands. The issue, in this case, involved the Llano County Commissioners Court and its authority over its school lands.


16 Pursuant to article VII, section 6 of the Texas Constitution, a commissioners court is the trustee of the county school lands granted to the county. The Attorney General explained that most counties in Texas have sold their county school lands and invested the proceeds in authorized securities. Llano County, however, held more than 17,000 acres of county school lands located in Tom Green County. The beneficiaries of the lands were the Llano Independent School District (Llano ISD) and the Burnet Consolidated Independent School District. Here, the school districts requested that the Llano County Commissioners Court delegate its authority over the school lands to the Llano ISD’s board of trustees. In exchange, the districts would agree to waive the commissioners court’s liability as trustee for the school lands. The Attorney General determined that article VII, section 6 of the Texas Constitution prevented the commissioners court from delegating its authority to dispose of the county school lands. The commissioners court had no power to delegate to another person or entity its discretionary authority to sell, lease, or otherwise dispose of the lands. Further, an order of the commissioners court attempting to delegate authority to sell the land would be invalid. Similarly, a sale and deed executed by an agent under such order also would be invalid. Consequently, the Llano County Commissioners Court could not delegate its authority as trustee of the county school lands to the Llano ISD. JC-0399 (2001).

SPECIAL EDUCATION HEARINGS

week. The district filed a motion arguing that the parents were not entitled to a due process hearing because (1) William was not eligible for dual enrollment because he was five years old, and (2) he was not entitled to special education services because he was enrolled in a private school. It was undisputed that William was a disabled child with a speech impairment in need of speech therapy services under the Individuals with Disabilities Education Act (IDEA). The parents rejected the district’s offer to enroll their son in kindergarten for the 2001-02 school year based on their belief that his speech impairment and maturity issues left him unprepared for interaction with his classmates and teachers. The parents also rejected the district’s offer to allow the boy to attend kindergarten only parttime. Instead, William would attend a private MDO program. The hearing officer first observed that because the boy turned five years old after the effective date of the Commissioner’s rule which limits dual enrollment to three- and four-year-olds, the boy was not entitled to dual enrollment. Contrary to the parents’ position, the MDO program constituted a private school placement. As a result, the boy did not have a right to receive some or all of the special education or related services that he would have received if he enrolled in the public school. Under Part B of IDEA, due process procedures do not apply to complaints that a local educational agency has failed to satisfy service requirements for private school children. The hearing officer, therefore, determined that the student did not have a right to receive special education speech services from the district unless and until he was enrolled as a full-time student with the district. The hearing officer ruled in favor of the district. William S. v. Northside ISD, Dkt. No. 316-SE-0601 (July 10, 2001).

Under The New Commissioner’s Rule, The Five-Year-Old Student Who Was Enrolled In A Private School Was Not Entitled To Dual-Enrollment In Order To Receive Speech Therapy Education Services From The School District

The Emotionally Disturbed Student Properly Qualified For Graduation And Was Not Entitled To Continued Educational Services At A Residential Facility At The School District’s Expense

During the 2000-01 school year, William received speech services from the school district. He was four years old at the time. William turned five years old on July 3, 2001. As a result, the district notified the boy’s parents that pursuant to a new Commissioner’s Rule governing “dual enrollment,” in order for William to continue to receive speech services from the district he would have to enroll in kindergarten. The rule, which went into effect on July 1, 2001, states that “[p]arents of an eligible student ages 3 or 4 shall have the right to ‘dual enroll’ their student in both the public school and the private school beginning on the student’s third birthday and continuing until the end of the school year in which the student turns five. . . .” Because the boy no longer was eligible for dual enrollment, the district offered to continue providing the boy with speech services as long as he enrolled in kindergarten in the district. The district also proposed that the boy attend class only parttime and, if necessary, would allow him to repeat kindergarten the following year. After the district notified the parents of the new Commissioner’s rule, the parents requested a due process hearing. The parents complained that their son was not ready to attend kindergarten as a five-year-old and that he would suffer “humiliation” if he was retained in kindergarten while his classmates entered first grade. Instead, the parents placed the boy in a private “Mother’s Day Out” (MDO) program four days a

Trinidad was eligible for special education services because he met the eligibility criteria for emotional disturbance. Specifically, he suffered from schizophrenia and bi-polar disorder. In March 2000, the school district placed Trinidad at a residential facility and provided educational services to him there. The boy completed the minimum academic requirements for graduation applicable to students in general education. However, he was exempted from the exit-level assessment instruments because modifications and accommodations provided during his instruction would render the results of the assessments invalid. The boy graduated from high school in the Spring of 2001. Following Trinidad’s graduation, his parents requested a due process hearing and argued that their son did not meet all of the requirements of his individualized education plan (IEP). The parents also claimed that the boy was not employable upon graduation and that he should have received additional services. They sought the boy’s reinstatement at the residential facility at the school district’s expense. The hearing officer determined that Trinidad was not entitled to reinstatement at the residential facility. The record showed that Trinidad completed the minimum academic credit requirements for graduation applicable to students in general education. Consequently, the boy was entitled to graduate from high school. Furthermore, the district coordinated efforts to put Trinidad’s par-


17 ents in communication with appropriate governmental entities that could assist them with services for the boy after graduation. The hearing officer determined that the student properly qualified for graduation and was not entitled to continue educational services at a residential facility at the district’s expense. Trinidad v. Fort Bend ISD, Dkt. No. 299-SE-0601 (August 3, 2001).

The School District Was Allowed To Override The Lack Of Parental Consent And Conduct An Assessment Of The Student; The Girl’s Continued Poor Performance Despite Substantial Educational Support In Her Regular Education Classes Indicated A Need For Further Testing To Determine The Girl’s Eligibility For Special Education Services J’nae received special education services as a student with a disability in speech from October 4, 1996, through May 13, 1997. The girl was dismissed from special education because her speech impairment no longer adversely affected her educational performance. However, in November of 1997, an Admission, Review, and Dismissal (ARD) Committee again admitted J’nae to special education based on a speech impairment. Her special education eligibility and educational program continued through the 1999-2000 school year. In December of 1999, school personnel determined that, because J’nae was experiencing difficulties in her school work, a comprehensive individual assessment (CIA) of the girl was necessary to see if she had any additional educational needs. However, the girl’s mother refused to consent to the CIA and, instead, indicated that she would seek testing from an outside source. The girl’s mother refused to provide a release to the school district that would allow it to obtain the results of any such testing. In February of 2000, an ARD Committee met and again sought the mother’s consent to conduct a CIA of J’nae in light of her continued difficulties in the classroom. The mother did not provide consent to evaluate her daughter and did not provide evaluations from any outside source. Two months later, the district informed the girl’s mother that J’nae was experiencing learning difficulties that could not be explained by her speech impairment. At J’nae’s annual ARD meeting in May of 2000, the Committee discussed the need for a three-year re-evaluation to determine continued eligibility for special education based on a speech impairment and the need for additional educational testing. The Committee’s recommendations were based on results of classroom assessments, observations, and testing, as well as J’nae’s grades, and achievement test scores. The girl’s mother refused to consent to the re-evaluation testing or additional educational testing and requested that J’nae be dismissed from special education. The mother later consented to a re-evaluation of the girl for her speech impairment only, but withdrew that consent a day later. In November of 2000, an assessment team concluded that J’nae did not appear to meet eligibility requirements for continued placement in special education. Consequently, an ARD Committee dismissed the girl from special education. A few months later, however, a referral meeting was held at the mother’s request to discuss services for J’nae under Section 504 of the Rehabilitation Act because the student was in danger of failing the third grade. The girl performed poorly on a district curriculum based test, reading assessment tests, and in her reading group. She also failed the third grade Texas Assessment of Academic Skills (TAAS) test.

J’nae also struggled in the classroom despite substantial support and assistance through the regular education program including the assistance of (1) a Title I aide, (2) an inclusion aide, and (3) TAAS tutorials. The girl’s teachers, therefore, suspected that the girl was learning disabled in the area of reading and that special education services were needed for J’nae to progress in school. Based on those concerns, the district sought a due process hearing seeking an order overriding the mother’s refusal to consent to the CIA. The hearing officer observed that federal and state law requires districts to identify, locate, and evaluate children with disabilities who live in their jurisdictional boundaries. In order to conduct a CIA and evaluate a student for eligibility, a school district must secure informed consent from the parent. If a parent refuses to provide such consent, a district may file a request for a due process hearing and seek an order overriding parental refusal to consent. To override the lack of parental consent to evaluate, a district must show by a preponderance of the evidence that there is a reason to suspect the student has a disability and there is a reason to suspect the student is in need of special education services. In this case, the record established that the district had ample reason to suspect both a disability and a need for special education. The district had suspected a disability in reading since at least December of 1999, but believed that the regular education supports were sufficient to meet the girl’s needs at the time. By the middle of the girl’s third grade year, the district had reason to believe that those supports no longer met her needs. J’nae’s continued poor performance and low test scores indicated a need for further testing. Therefore, J’nae was a student who may have been eligible for special education services and the district was required to assess her for her eligibility. The hearing officer determined that the district could proceed with a CIA of the girl despite the lack of parental consent. Palestine ISD v. J’nae H., Dkt. No. 278-SE-0501 (August 13, 2001).

The Student Qualified For Special Education Services; The School District Did Not Improperly Base Her Placement In Special Education On Environmental Or Cultural Factors; The Girl’s Placement In A Resource Class For Math Was Proper; And The Student Made Academic Progress In The Special Education Program; However, The Student Was Entitled To A Speech/Language Assessment In the Fall of Jeanette’s fifth grade year, the girl’s bilingual teacher referred the student for special education assessment because of concerns with the girl’s below average academic performance. The teacher observed poor academic performance in all areas, especially in reading and writing. At the time of the referral, Jeanette could only read at a pre-primer level, was easily distracted, and somewhat withdrawn. She also had a short attention span and difficulty performing classroom assignments. Until then, the district attempted to address the girl’s academic difficulties through individual tutoring, peer tutoring, modified and/or shortened assignments, extra time for completion of work, changing her seat in class, and other English and second language strategies. However, she made little or no academic progress despite those efforts. Following the referral to special education, the district conducted a comprehensive individual assessment (CIA) of Jeanette


18 in both English and Spanish. Although her IQ was within the average range of intelligence, her academic achievement testing was not consistent with her intellectual functioning particularly with respect to written and oral expression, listening comprehension, basic reading skills, and reading comprehension. An ARD Committee reviewed the results of the CIA, identified Jeanette as a student with a learning disability, and recommended her placement in special education. The Committee also recommended exemption from the TAAS test as well as placement in resource classes for reading, writing, language arts, and math. The student was placed in regular education classes for science and social studies as well as electives, lunch, recess, and PE. The girl’s father, however, was very resistant to the Committee’s recommendation to place Jeanette in special education. His overriding concern was that the special education program would not provide his daughter with the support and instruction she needed to make meaningful, and more rapid, progress. Ultimately, the district and the father entered into a “bargain” in which the father understood that he could withdraw his daughter from the special education program at the end of the year if he did not believe that she was making academic progress. Although the district believed that she had made such progress at the end of the year, the father disagreed and requested a due process hearing. At issue before the hearing officer was whether (1) the district’s assessments were appropriate, (2) the girl needed speech/language therapy, (3) the district provided the girl with a free appropriate public education (FAPE), (4) the district properly identified Jeanette as a student with a learning disability in math, (5) the girl’s exemption from the math portion of the TAAS test was appropriate. The hearing officer first determined that the district’s assessments of the girl were appropriate and rejected the father’s claim that the results were due to environmental and cultural factors. The hearing officer observed that a team may not identify a student as having a learning disability if the severe discrepancy between ability and achievement is primarily the result of environmental, cultural, or economic disadvantage. In this case, the record showed that although there were some differences in the achievement tests conducted in Spanish and English, both sets of tests established the presence of a learning disability for Jeanette. Further, the district used a variety of assessment tools and strategies to gather relevant functional and developmental information about the girl. According to the hearing officer, the tests were selected and administered so as not to be discriminatory on a racial or cultural basis. Further, the girl’s educational performance confirmed that her academic skills in reading, writing, language, and math were significantly below what reasonably could have been expected. The father also complained that the daughter should have been provided with speech/language therapy. The evidence, indeed, showed that a speech/language assessment was required in order to assess all areas of the girl’s suspected disability. However, the district had not conducted such an assessment. Accordingly, the hearing officer ordered the district to conduct a speech/language assessment to determine whether Jeanette (1) qualified for services as a student with a speech/language impairment, and (2) would benefit from speech/language therapy. An ARD Committee would then be required to make any appropriate recommendations based on that assessment. The hearing officer also considered the father’s complaints that his daughter should not have been placed in a resource class for math and should not have been exempted from TAAS testing in math. He claimed that the girl’s assessments did not

indicate a need for such modifications in the area of math. The hearing officer observed that once the student qualified for special education services, the ARD Committee had a duty to review all data before it in designing an appropriate program to the meet the student’s needs. Evidence showed that the girl’s math performance was significantly below her peers and that despite her efforts, she did not perform at her expected skill level. The record also showed that Jeanette had failed all three portions of the TAAS test, including math. Thus, the district properly placed the student in a resource class for math and exempted her from the TAAS exam. Finally, the hearing officer determined that Jeanette had made academic progress in the special education program. The district provided the student with small group and individualized instruction at an appropriate pace and instructional level. Further, the girl made progress academically and moved from the pre-primer level to the mid-second grade level in reading and language art. She also moved from the third grade to the fourth grade level in math and exhibited greater confidence and enthusiasm in her special education classes. The hearing officer denied all of the father’s claims for relief except his request for a speech/language assessment. Jeanette E. v. Socorro ISD, Dkt. No. 220-SE-0401 (June 12, 2001).

The Emotionally Disturbed Student Was Entitled To Placement At A Residential Facility Due To His Severe Behavioral Problems; The Boy Could Not Be Educated At The District’s Self-Contained Behavioral Unit Because He Posed A Threat To Himself And Others Max was an eleven-year-old who qualified for special education services as a student with the disabilities of emotionally disturbed, learning disabled, and other health impaired. The boy had been diagnosed with oppositional defiant disorder, reactive attachment disorder, and attention deficit hyperactivity disorder. He had a history of angry outbursts, such as destroying furniture, kicking through his bedroom door, violence toward his mother and siblings, and night terrors. He also abused himself, often causing self-inflicted bruises and other injuries. Further, the boy exhibited inappropriate sexual behavior and used inappropriate sexual language and gestures toward his peers at school. At the beginning of the 2000-01 school year, Max’s continued discipline problems began to interfere with his regular education classroom. In August of 2000, an ARD Committee recommended that Max receive all or part of his instruction in the special education setting at a different campus that was better equipped to handle his physical and verbal aggression. According to the Committee, the boy would receive lunch, PE and music in the general education setting with a designated aide. Max’s parents, however, disagreed with such a change in placement and preferred that Max remain in regular education classes. The district and the parents ultimately reached an agreement that would allow Max to be placed at the new campus with increased behavioral structure for the boy in a self-contained behavioral unit. As part of his new individualized education plan (IEP), Max received 90 minutes of reading and language arts per day in the general education classroom with the addition of related services of cognitive retraining and counseling. Further, the personnel at his new campus carefully addressed and monitored Max’s behavior. In January of 2001, an ARD Committee convened to review Max’s TAAS scores and the findings of an occupational therapy


19 assessment. The boy’s TAAS scores and the occupational therapy assessment showed that he was performing well below his age level. The Committee recommended 30 minutes of one-on-one instruction in keyboarding, regular guidance counseling for 30 minutes daily, and social skills instruction aimed at reducing negative behaviors. About a month later, another ARD Committee met to consider the parents’ request for residential placement and to review the family counseling assessment. The family counseling assessment targeted the family’s management of Max’s behaviors at home, including de-escalation techniques, crisis management, and improvement of transitions between home and school. The Committee recommended (1) related services of family counseling, and (2) respite care services to be paid through the Texas Family Connection (TFC) for 60 days annually. The district, however, refused the parents’ request for placement at a residential treatment center. As a result, the parents sought a due process hearing and requested that Max be placed at a residential treatment center. The parents feared that if Max was not placed in a residential facility, there was a considerable chance that he would continue to injure himself and others. At the time of the hearing, the boy was hospitalized in the psychiatric ward of a local hospital where he participated in hospital school classes, group therapy, individual sessions, and constant supervision in a locked-down psychiatric ward. The district, in contrast, argued that its self-contained behavioral program had sufficient safeguards in place to reasonably protect Max and others from harm. The hearing officer observed that a district’s obligation to provide residential placement is limited to those situations where it is determined that the placement is necessary for the student to receive FAPE. The record showed that psychiatrists actively involved in Max’s treatment believed that a residential placement was necessary for him due to his severe behavior. The hearing officer determined that Max’s severe behavioral problems prevented him from re-joining the community and safely residing in his home with his family and prevented him from attending school at the district. His behavior posed threats to the safety of Max, other students, staff, siblings, his parents, and others with whom he came in contact. Although the district provided an exemplary self-contained educational program to meet Max’s needs, the boy’s behavior prevented him from receiving FAPE in the school setting. The hearing officer, therefore, ordered the district (1) to convene an ARD to develop an IEP that would include residential placement, (2) to fund the placement in the residential facility until the boy could return to public school, and (3) to develop plans which eventually would provide his safe return to the district from the residential program. Max B. v. Calallen ISD, Dkt. No. 186-SE-0201 (June 9, 2001).

The Parent Did Not Have The Unilateral Right To Withdraw Her Son From Special Education Without The Collective Consensus Of The ARD Committee; Although The Boy Made Some Academic Progress During His Sixth Grade Year, He Remained Eligible For Special Education Services Alexander became eligible for special education services in the fifth grade as a student with a learning disability and a speech impairment. At the time of his referral, Alexander’s teacher noted that he was unable to focus or work independently, had “poor” receptive and expressive language skills for his age, “poor” social/emotional/behavioral skills, and needed one-on-one

instruction in order to attempt classroom assignments. He had made minimal educational progress in the regular classroom setting and failed the TAAS test in third and fourth grades. A comprehensive individual assessment (CIA) also found that the boy’s intellectual abilities ranged from the low average to average with his verbal IQ significantly lower than his performance IQ. Attention, reading, and written language were identified as problem areas for him. Overall, he was functioning well below average in reading, language, writing, and math skills compared to his peers. Alexander was placed in a self-contained special education classroom the remainder of his fifth grade year because it provided the small class size that he needed. In addition, an extensive set of instructional modifications was implemented. In April of 2000, an Admission, Review, and Dismissal (ARD) Committee reviewed a new speech-language assessment and determined that Alexander no longer was eligible for special education as a student with a speech impairment. The ARD Committee later met again at the request of the boy’s mother to discuss his continued placement in a self-contained class. The mother requested that her son be moved to a less restrictive placement such as a resource room for reading/language arts and math, along with regular class placement for his other classes. Ultimately, a new individualized education plan (IEP) was implemented that included resource placement for the sixth grade. In March of 2001, the ARD convened to plan Alexander’s seventh grade program. Although the district recommended continued recourse room placement, the boy’s mother disagreed. Instead, she wanted her son dismissed from the special education program due to her concerns that he was not being challenged and that his self-esteem fell due to teasing from peers about his special education placement. The ARD Committee reluctantly agreed on the assumption that parents could unilaterally withdraw their child from the special education program. By the end of his sixth grade year, however, Alexander continued to have difficulty with word problems and regrouping in both subtraction and addition problems. He also was distracted easily in resource classes and had more difficulty completing his assignments in those classes. The boy continued to function academically well below average for his age in the basic skills of reading, writing, language, and math. Consequently, an ARD Committee met to reconsider his dismissal from special education. The mother disagreed with the ARD’s determination that Alexander still qualified for special education services and requested a due process hearing on the matter. The Individuals with Disabilities Education Act (IDEA) requires a two-pronged analysis for determining whether a child is eligible for special education or related services. First, the district must have some reason to suspect that a child has a disability. Second, the district must determine whether the child is in need of such services. In this case, the issue was whether Alexander was in need of special education and related services. Although there was evidence that the boy had made educational progress, his basic academic skills remained well below average. Therefore, he needed the support of special education services to benefit from his education. The hearing officer emphasized that the law does not allow any single member of an ARD Committee, including a parent, to make a unilateral decision to withdraw a student from special education. Accordingly, the district improperly withdrew the boy from special education at the mother’s request. The hearing officer determined that although the boy made progress during his sixth grade year, he remained eligible for special education services. Alexander P. v. Dallas ISD, Dkt. No. 308-SE-0601 (August 15, 2001).


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PRSRT STD U.S. Postage PAI D Denton, TX 76202 Permit No. 207


Sept., 2001