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

LEGAL DIGEST Volume 27, Number 10

TM

November/December 2011

A Look inside . . . This month we report seven court cases, six of which are from the 5th Circuit, along with 16 decisions from the Commissioner’s office and four special education due process hearings. Here are the highlights. Labor and Employment

We report seven decisions from the Commissioner’s office dealing with RIF (Reduction in Force). No doubt this is a reflection of budget cutbacks occurring in most districts across the state. We are likely to see more RIFs in the next two years. The four cases from Killeen ISD (page 10) are a reminder to be sure to put all of the people in the “pool” of possible RIF candidates that belong there according to local policy. Perry v. Mt. Enterprise ISD (page 11) reflects how the consolidation of programs with other districts might require a RIF. Most helpful to districts is the decision in Ivie v. Lone Oak ISD (page 12) in which the Commissioner confirms that districts have broad discretion to institute RIFs due to a “program change.”

The case of Wheeler v. Austin ISD (page 10) provides a good discussion of the scope of the term “same professional capacity.” The Commissioner does not approve of “professional educator” as an appropriate description. Too vague, too broad. Palazzolo v. Fort Worth ISD (page 14) presents a new issue—can the independent hearing examiner in a termination case be paid more than the $8000/per case cap? Here, the Commissioner rules that the cap cannot be waived, even by agreement of the parties. Liability

In Javier v. Aguilar (page 15), the 5th Circuit held that school board members were not entitled to qualified immunity in a case where the plaintiff alleges illegal retaliation by the board members. In Estate of C.A. v. Grier (page 16), a principal and science teacher were granted immunity after a student drowned after a school science experiment.

Practice and Procedure

Doe v. Silsbee ISD (page 16), the celebrated “cheerleadershave-a-right-not-to-cheer” case appears in our publication for the third time. This decision addresses the effort by the school district to recover attorneys’ fees for a suit that the court classified as partially frivolous. Here, the court rules that not all of the plaintiff’s legal theories were frivolous. Some of them were, and the district can recover fees for money spent defending against those claims. The First Amendment “I have a right NOT to cheer” claim was not deemed frivolous. Religion

The Dawg’s Award for Most Important Case of the Month goes to Morgan v. Swanson (page 18), a major pronouncement by the 5th Circuit on the First Amendment as applied to elementary school students expressing religious views. While the court exonerated the two principals from personal liability, it also sent a clear message about this issue for the future: schools must be “viewpoint neutral” with regard to religious speech from student to student, treating it no different than any other subject matter students might discuss. Go to our website (www.legaldigest.com) for a Web Exclusive interview with Walsh Anderson attorney Karla Schultz for a discussion of the practical implications of this decision. Students

The 5th Circuit applied the due process clause to a district in Louisiana in connection with a student expulsion in Swindle v. Livingston Parish School Board (page 19). And our lead article this month, by Walsh Anderson attorney Laura Rodriguez McLean, outlines the latest in student and personnel free speech cases. Special Education/Disability Law

Our special education cases this month involve IEEs, predetermination claims by parents, eligibility decisions and behavioral issues. All this along with the latest from the Dawg. Enjoy!

Also . . . • Sticks and Stones: Off-Campus Free Speech Cases and What They Mean for School Officials (Laura Rodriguez McClean) • Law Dawg (Jim Walsh)

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Sticks and Stones: Off-Campus Free Speech Cases and What They Mean for School Officials By Laura Rodriguez McLean Attorney at Law Walsh, Anderson, Brown, Gallegos & Green, P.C. Irving, Texas “When you give everyone a voice and give people power, the system usually ends up in a really good place. So, what we view our role as, is giving people that power.” – Mark Zuckerberg, Facebook

“A little consideration, a little thought for others, makes all the difference.”

– Eeyore, Winnie the Pooh

Not many people would dispute that there is power in being able to express one’s voice. The freedom to express one’s self is highly valued in our society. After all, the First Amendment of the U.S. Constitution protects freedom of speech. At the time of our Founding Fathers, the print press and local town square were the likely forums for expression. Today, the landscape has changed. As a result of such technological advancements as internet websites, blogs, texting, and social networking sites, individuals are able to communicate information faster and reach broader audiences. Personal thoughts, ideas and opinions originating in the living room of one’s home can access and impact the company boardroom, city hall, and the schoolhouse. Texas School Administrators’ Legal Digest ISSN 0882 – 021X Published 10 times a year Individual subscription........................................................................ $140 Copyright © 2011. Reproduction of all or part of this publication requires permission from the editor.

Managing Editor: Jim Walsh Editor: Jennifer Childress Chief Operating Officer: Ted Siff

Editorial Advisory Board: David Backus – Underwood Law Firm Lisa Brown – Thompson & Horton, L.L.P. Sarah Orman – Walsh, Anderson, Brown, Gallegos and Green, P.C. Laura Rodriguez McLean – Walsh, Anderson, Brown, Gallegos and Green, P.C. David Thompson – UTSA Jan Watson – Walsh, Anderson, Brown, Gallegos and Green, P.C.

Texas School Administrators’ Legal Digest welcomes your comments and contributions, though publication is not guaranteed. The views of feature article authors are their own and do not necessarily reflect the views of the DIGEST. The information provided in the DIGEST is not intended to constitute specific legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Direct correspondence and subscription inquiries to: Texas School Administrators’ Legal Digest 1601 Rio Grande, Ste. 455 • Austin, TX 78701 512-478-2113 FAX 512-495-9955 Email: info@legaldigest.com • Website: www.legaldigest.com

The expression of these thoughts and ideas is powerful because words can have a profound impact, good and bad. How has technology changed the landscape of off-campus speech when it comes to the schoolhouse? Well, let’s look at some examples. If you are a teacher upset with the superintendent’s latest initiative to raise test scores, why commiserate in the teacher’s lounge with your colleagues when you can create and post on a blog what you really think of her ideas? If you are a student, why toilet paper the principal’s house, when you can easily post on your Facebook page what you really think about him and his family?

These scenarios represent serious concerns for school administrators and officials. The reality is that for most educators, these scenarios do not result in the school ending up in a “good place.” From the school administrator’s perspective, if that is the case, he or she should have the ability to respond. However, knowing how to respond, or whether to respond, to student and employee off-campus speech can be tricky at best. The purpose of this article is to highlight recent off-campus speech cases, address some possible scenarios school administrators can face and provide some guidelines and factors for administrators to consider when deciding how to respond to off-campus speech by students and employees. 1. Student Off-Campus Speech In general, students retain their free speech rights, whether they are on or off campus. However, student speech will not be protected by the First Amendment when the speech is vulgar, sexually explicit, lewd, or encourages drug use and it occurs on campus or at school-sponsored events. Student expression, through words or actions, also is not protected when it (1) materially and substantially disrupts the normal operations of school or the rights of other students or teachers, or (2) there is reasonable cause to believe that the expression would cause a material and substantial disruption of school operations.1 The “material and substantial” principle is generally referred to as the Tinker standard. It is the second part of the Tinker standard that is most important when determining whether a student’s off-campus speech or conduct may be subject to discipline by school officials. When a student’s off-campus speech or conduct results in a “material and substantial” disruption of or interference with school operations, then a school district may subject the student to disciplinary action. Conversely, if there is no such disruption, no reasonable cause to believe there will be a disruption, or if it is the school district itself that causes the disruption, then the student’s off-campus conduct may not be punished by


3 the school. Case law shows that for purposes of establishing a “material and substantial” disruption, there has to be some sort of nexus or connection between the school and the student’s offcampus conduct. Importantly, a district official’s or employee’s discomfort or annoyance with the speech is not sufficient to show a “material and substantial” disruption. Case Study #1– A student’s creativity is rewarded. Justin is a gifted high school student who has won awards in academic competitions. He is also enrolled in Advanced Placement classes. Justin has a sense of humor. He decides to create a profile of the high school principal on a social networking site. He does not create the profile at school or use any school district resources. Instead, he creates the profile at home using his grandmother’s computer. Creation of the profile involves answering questions geared to disclosing the person’s likes, dislikes, what they have done, etc. In response to some of the questions, posing as the principal, Justin states that he was “too drunk to remember” his birthday and refers to himself as a “big whore.” Profile comments also include such “interests” as “transgender, appreciators of alcoholic beverages” and club membership in “Steroids International.” The fake profile also lists other students as friends allowing them to access the profile. Not surprisingly, word spreads about the existence of the profile at school. Students try and successfully access the profile, including while at school and during school instructional hours. Justin is not alone in his sense of humor. There are other students at the school who have created fake profiles of the principal. Justin is suspended and placed in an alternative education setting. He is also banned from participating in extracurricular activities, including graduation. From the school district’s perspective, Justin’s actions violate the student code of conduct, specifically harassment of a school administrator, gross misbehavior and use of profane, vulgar or obscene language. Justin’s family files a lawsuit against the district alleging violations of his First Amendment right of expression. What will a court of law decide? Decision: Justin wins. The facts of this case study are taken from a recent opinion issued by the Third Circuit Court of Appeals in the case of Layshock v. Hermitage School District.2 The opening sentences of the Court’s opinion leave no question in the reader’s mind that the Court sided with the student. “. . . [W]e are asked to determine if a school district can punish a student for expressive conduct that originated outside of the classroom, when that conduct did not disturb the school environment and was not related to any school-sponsored event.” 3

The Court reasoned that the school district’s attempt to show a connection between Justin’s conduct and the school was unpersuasive at best. While there was evidence to show that the principal’s picture was taken from the District’s website, that the principal found the profile degrading, demeaning and shocking and that Justin and other students accessed the profile from school, the Court rejected the District’s attempts to argue that Justin’s actions “materially and substantially” disrupted the school environment. As a result, the Third Circuit Court

of Appeals affirmed the lower district court’s decision in favor of Justin and his parents. The parties have asked the Supreme Court to review this decision. Case Study #2 – The joke that goes too far. J.S. is a middle school student who is disciplined twice for violations of the dress code by the campus principal. She and a friend, another middle school student, decide to create a false internet profile of the principal on a social networking site. They create the profile at J.S.’s house on a computer belonging to her parents. While the profile did not identify the principal by name or school, it did contain his picture. The profile referred to him as “M-Hoe,” a bisexual middle school principal whose general interests included “being a tight ass, riding the FRAINTRAIN, spending time with my child (who looks like a gorilla), baseball, my golden pen, f____ in my office, hitting on students and their parents.” (The principal’s wife is named Frain and is a counselor at the same school). The profile is so outrageous no one takes it seriously. Initially, the profile can be accessed by anyone having knowledge of the address. However, J.S. makes it private after one day limiting access to approximately 22 district students. Because the district blocks access to the social networking site at school, no students can access it at school to view the profile. The principal learns of the profile through a student who, in turn, brings the principal a photocopy of the profile and identifies J.S. as its creator. The principal speaks to the parents and contacts the social networking site which, gratefully, takes the profile down. Notwithstanding a written letter of apology from J.S. to the principal, she is suspended for 10 days. J.S.’s parents sue the District, alleging that J.S. was engaging in free speech. What will a court of law decide?

Decision: J.S. wins. Once again, the Third Circuit Court of Appeals was tasked with addressing this question in the case of J.S. v. Blue Mountain School District.4 And, once again, the Court held in favor of the student reversing the lower court’s decision which had determined J.S.’s speech to be vulgar and offensive. The Court reasoned that the profile did not disrupt school nor was there a reasonable forecast of a disruption. The Court’s decision is interesting in light of the fact that evidence in the record showed that on at least three occasions, during classroom instruction, two teachers either overheard discussions by students or were involved in discussions with students concerning the profile. Additionally, there was evidence that the principal’s wife, a counselor, had to rearrange her schedule to substitute for another counselor while she sat in on a meeting between the principal and J.S.’s parents. In reaching its conclusion, the majority of the appeals court relied on the facts that J.S. had created the profile as a joke, limited access to the profile to her friends, and did not personally identify the principal in the profile. The court concluded that the fictitious profile was so outrageous that “no reasonable person could take its content seriously,”5 and the record demonstrated that no one took it seriously. As for the student discussions in class, the Court considered them “a few minutes of talking in class.”6 Finally, the appeals court noted that no students were able to view the profile from school. What about the lewd and crude nature of the statements J.S. made? The court acknowledged


4 the vulgarity of the language posted, but based on prior U.S. Supreme Court case law, determined that because the use of the language occurred outside of school and during non-school hours, the speech could not be regulated.7 Like the Layshock case above, a request has been made for Supreme Court review. Case Study #3 – A “true threat” is not protected speech. After being spurned by a girl, while at home D.J.M. engages a friend in online instant messaging to discuss the situation. Their discussions cross over into D.J.M. making such comments as accessing a .357 Magnum from a friend, but stating that he would spare the life of the female student who spurned him because he still liked her. However, D.J.M. tells his friend that he would “get rid of” other specific individuals such as his older brother and the “midget[s],” “fags” and “negro bitches” at school. D.J.M. also states that he wants the school to be “known for something.” The two friends discuss the prospect of shooting particular people and insert in their conversation such short statements “lol” and “haha.” They also discuss other topics such as TV shows, music, and classes. Concerned about some of D.J.M.’s statements, the friend shows the conversation to a trusted adult and tells her that she is “kinda scared.” D.J.M. has mentioned that he talked to a friend who said he would give him a gun. The adult friend tells the principal and shows the principal transcripts of the conversation. The principal then informs the superintendent. In the meantime, word has spread through the community. Parents are calling the school wanting to know who has been targeted and inquiring whether their child is on the “hit list.” Campus security is increased and access to the school is limited in response to the threat. The police are contacted, and D.J.M. is arrested. He is subsequently sent to a psychiatric hospital after admitting that he has contemplated suicide. Once he is back in juvenile detention, the district suspends him for the rest of the school year. D.J.M. sues alleging a violation of his First Amendment right. Who wins?

Decision: District wins. In D.J.M. v. Hannibal Public School District No. 60, the Eighth Circuit Court of Appeals, addressed whether “a reasonable recipient” would have interpreted the student’s statements as a “serious expression of an intent to harm or cause injury to another.” 8 In framing the issue this way, the Court recognized and followed a line of cases recognizing that a “true threat” is not constitutionally protected speech. What is a “true threat?” It is a statement that a reasonable recipient would interpret as a serious expression of intent to harm or cause injury. Further, the speaker must have intended to communicate the statement to the object of the threat or to a third party. In defense of his First Amendment rights, D.J.M.’s arguments were that his comments were made at home and it was the recipient of those comments, his friend, who informed the school. From the Court’s perspective, these facts, while true, were not relevant to its primary analysis. The appeals court concluded that D.J.M.’s speech was a “true threat” by relying on the following facts: (1) D.J.M. discussed a potential school shooting, (2) he mentioned his committing suicide in connection with the shooting, (3) he named the type of gun he would use, and (4) he named the specific individuals

he planned to shoot. D.J.M. admitted to being depressed, expressed his access to weapons, and made the statement that he wanted the school to be “known for something.” The court of appeals reasoned that D.J.M.’s speech was not protected under Tinker, because there was evidence that the school experienced material and substantial disruption. Evidence in support of the disruption included the parent complaints, changes in school security measures, and the actions taken by the principal in response. Case Study #4 - The Queen of Mean. A high school senior, Kara, creates on her home computer a discussion group on her favorite social networking site. The group is named “S.A.S.H.” Kara claims that the name stands for “Students Against Sluts Herpes.” She invites a good number of friends to join the discussion group. Approximately two dozen classmates sign up. Students post messages and pictures to the page. One student accesses the page and joins the group while using a school computer during an after-hours class. Shay is a classmate, but is not invited to join the group. Students quickly post comments about a classmate, “Shay,” who allegedly had herpes. Altered photos of Shay suggesting she has herpes are also posted. Other comments and images are posted stating Shay is a “whore.” (One of the students belonging to the discussion group later admits that the name of the group stood for “Students Against Shay’s Herpes.”) Shay’s parents complain to school officials about the website. Shay is so distraught and uncomfortable that she chooses to not attend school for a day. The district investigates, and learns that Kara was responsible for creating the page and group. Kara is disciplined for violating the district’s anti-bullying and anti-harassment policy and is suspended from school for 10 days (which is later reduced to 5 days on appeal). School officials also imposed a 90-day “social suspension” from extracurricular activities and events. Importantly, this social suspension prohibited Kara from being crowned the “Queen of Charm.” Not one to be denied her right to such a high office, Kara and parents sue the school district, alleging violations of her First Amendment rights because she was disciplined for her private, off-campus, non-school related speech. Who wins?

Decision: The school district wins. In the case of Kawolski v. Berkeley County Schools, the Fourth Circuit Court of Appeals addressed whether Kara’s speech was “off-campus, nonschool related speech.” 9 The main issue was whether Kara’s actions fell within the school district’s “legitimate interest in maintaining order in the school and protecting the well-being and educational rights of its students.”10 Following the U.S. Supreme Court’s analysis in Tinker, the court of appeals looked to whether Kara’s speech caused interference and disruption. Based on the facts noted above, the appeals court determined that “every aspect of the webpage’s design and implementation was school-related” because Kara “designed the website for students” and “she sent it to students inviting them to join and those who joined were mostly students.”11 An important aspect of the court’s decision was its conclusion that public schools have a compelling interest in regulating speech that disrupts and interferes with the school’s work and student discipline matters, including discipline for student harassment


5 and bullying. In short, the appeals court concluded that where off-campus speech “has a sufficient nexus with the school, the Constitution is not written to hinder school administrators’ good faith efforts to address the problem” of bullying.12

if in Case Study #2, the principal, upon learning of the existence of the fake profile, disseminates photocopies of the profile to his staff for the purpose of helping him find out the identity of the person who created the page. Inevitably, the profile becomes the talk of the campus among teachers, staff, and students with discussions occurring in class and during instruction. Under these facts, a court would likely conclude that the disruption was district-created.

Handling Off-Campus Student Misconduct Issues The cases cited above clearly show that courts are split on the ability of public schools to address student off-campus speech and conduct. To date, the U.S. Supreme Court has not addressed what appear to be conflicting decisions from the federal circuit courts of appeal on student speech cases. Notwithstanding the apparent split in opinions, school administrators can obtain some general guidance and considerations from the cases that have been issued this year. For example:

6. “True threats,” whether made at home or at school, are not constitutionally protected.

7. “True threats” are statements that a reasonable recipient would interpret as a serious expression of intent to harm or cause injury. Factors for making the determination of whether a “true threat” has occurred include, but are not limited:

1. A student’s lewd, vulgar, or offensive speech outside of school and during non-school hours cannot, alone, serve as the basis for disciplinary action. A student’s speech in this context is protected. 2. A student’s off-campus speech will not be protected by the First Amendment when the student’s speech materially and substantially disrupts the normal operations of school, the rights of other students or teachers, or where the school administration has reasonable cause to believe that the expression will cause a material and substantial disruption of school operations. 3. When trying to determine whether a material and substantial disruption of school operations has occurred, a school district needs to be able to draw a nexus between the school and the student’s off-campus conduct.

• • • •

Factors for making this assessment include, but are not limited to: •

The speech is directed to students.

Students/staff discuss the statements at school and disruption of instruction or school business occurs.

• • •

Recipients of the information accessed the speech while at school.

Targets of the speech (whether students or employees) have avoided school or taken leave from work. Complaints have been received from parents, students, and/or community members.

District staff and officials have taken steps to address the complaints.

4. Simple discomfort and annoyance on behalf of school administrators and officials will not suffice to show a material and substantial disruption. 5. Similarly, disruption that occurs as a result of the district’s response is insufficient. For example,

Specific persons are identified as the targets of the harm. The type of harm intended has been identified.

The speaker has specified his/her ability to carry out the harm.

Extra precautions and safety measures were taken by the school and school officials in response to the threat.

8. An underlying and rather disturbing trend in the cases cited above is the courts’ tolerance of students treating educators and persons in authority in a disrespectful manner. In these situations, evidence of an adverse impact on the educator needs to be clear. The nature of the language, even crude language, is not enough. Where off-campus student speech targets employees, districts should be able to show the negative impact the speech has had on the employee’s ability to execute their duties and responsibilities. 9. Whether or not there are sufficient facts to support a district’s ability to discipline a student for off-campus speech, depending on the nature of the speech, district officials may have grounds to refer the matter to law enforcement. For example, under state law, it is illegal to make a terroristic threat and create a false web persona.13

When responding to off-campus student speech, it is important that school officials consult the district’s code of conduct to establish the particular grounds that have been violated as well as to check with the district’s legal counsel. If all signs point to taking disciplinary action on the student, school district administrators need to be measured and reasonable in their approach. In other words, the disciplinary action that is taken should be proportional to the offense and not restrict a student’s educational opportunities. Simply put, the harsher the penalty, the greater the likelihood that the decision to discipline will be challenged.


6 II. Employee Off-Campus Speech Cases Like students, public school district employees can access such media platforms as Facebook, Twitter, and Blogger. In contrast to off-campus misconduct, a school district maintains a broader ability to discipline an employee for computer-related misconduct occurring while on-campus or on-duty. Clearly articulated district policies, including acceptable use policies, can serve as the basis for corrective or disciplinary action. However, a district’s ability to take disciplinary action for conduct resulting from an employee’s use of their own technology after hours or while off duty is more limited. This is because, in general, what a school employee does and says outside of school is often the employee’s business and is protected by the First Amendment. An employee’s off-campus speech can become the school district’s business, however, if the employee is acting in their capacity as a district employee or if the employee’s ability to perform their job duties is negatively impacted. Important to the courts when addressing off-campus employee speech or conduct, are the following questions:

1. Is the employee speaking as a citizen or as a public employee? When analyzing whether a public employee’s “speech” (this includes online activities) can be restricted, a court will first look to see if the employee is speaking as a private citizen or in their role as a public employee. When public employees make statements pursuant to their official duties, they are not speaking as citizens for purposes of the First Amendment and they may be subject to employer discipline for misconduct. This is true whether the statements occur outside of school or not. 2. Is the employee speaking on a private matter or a matter of public concern? If the employee is speaking as a citizen rather than as a public employee, a court will look to whether the employee is speaking on a private matter or a matter of public concern. If the employee is speaking or engaging in off-duty conduct that is personal in nature on a matter unrelated to their employment position, and no detriment is caused to the school district, then the speech or conduct will likely be protected by the First Amendment. But if the employee’s off-campus conduct about a personal matter impacts the employee’s ability to perform their job or affects the school’s operations, then it may be subject to discipline. A criminal matter is a good example of the type of conduct that might have an unfortunate effect at school.

If the employee is speaking as a citizen on a matter of public concern, their speech is also usually protected by the First Amendment. Again, the only exception would be if the government employer, such as a school district, has a legally adequate justification for disciplining the employee because it interferes with the district’s ability to provide educational services. The important issue is whether the employee’s offcampus speech or conduct can be shown or presumed to have impeded proper performance of his or her job responsibilities or interfered with regular school operations. When such interference has occurred, then disciplinary action may be upheld. The seminal case addressing an educator’s right to expression as a citizen is the decision of the U.S. Supreme Court in

Pickering v. Board of Education.14 Pickering is significant because it recognizes that educators, as citizens of the community, have a right to freedom of expression outside of school. This right, however, is not unrestricted. Where an employee is speaking as a citizen on a matter of public concern, then the government employer must have adequate justification for disciplining an employee. In those cases, the courts will balance the employee’s right of expression with the legitimate interests of the public employer to promote “the efficiency of the public services it performs through the employee.”15 Below are scenarios and case studies to demonstrate how First Amendment issues play out in off-campus employee speech. Case Study #5 – Can a guy not vent? A male teacher maintains a Facebook account. He restricts access to his page, requiring that permission be given in order to join his page. His Facebook friends include other teachers, but do not include students. He uses his page as an opportunity to vent the frustrations he experiences over the course of the day. These frustrations include the treatment he is experiencing at the hands of his principal, the selfish and rude attitude of students and parents in general, and his dislike of his particular campus assignment. He also posts pictures of himself and friends at parties and local restaurants enjoying drinks. The postings also include pictures of himself in crazy Halloween costumes, including a picture where he is dressed up as Lady Gaga. A fellow teacher and Facebook friend prints out the teacher’s postings and gives them to the principal. Can the district take disciplinary action against the employee? Answer: Probably not. If a school district is considering terminating this employee, it is likely that the action would not be upheld and there would be a First Amendment violation. Given that the employee is discussing personal topics in a relatively private setting to a limited audience, the district would have to show that its interests in the effective functioning of the school outweighs the teacher’s free speech rights in order to discipline the employee. Factors to consider would include whether confidentiality (student or otherwise) has been breached, any impact on staff morale, and the potential or real disruption at school. Based on the facts presented, it is likely that the teacher’s conduct is protected by the First Amendment because it does not appear that confidentiality has been breached, significant disruption to school operations has occurred, or that staff morale has been negatively impacted. Does this mean the issue is not brought up with the employee? No. The employee could be alerted to the fact that the existence of their page, even though private, has been brought to the attention of administration through colleagues. This could serve as the opportunity to discuss with the employee the dangers of having colleagues as Facebook “friends,” discuss why the employee is upset or unhappy with his assignment, and point the employee to the grievance process should he wish to address his concerns in a more appropriate forum.

sticks and stones continued on page 23


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LAW DAWG by Jim Walsh Attorney at Law Walsh, Anderson, Brown, Gallegos & Green, P.C. DEAR DAWG: We are looking for innovative ways that we might raise more funds and build more support for our schools. Several of our board members are very addicted to all these dancing programs on TV. You know, “So You Think You Can Dance,” and “Dancing With the Stars,” and “Dancing With the Second Cousins of Your Dentist.” It just seems like there is an insatiable appetite for this stuff. So the board has asked me to put together a fundraiser this spring based on “DANCING WITH THE BOARD.” Oh boy. Now, what you need to understand about my situation is that I have been here as superintendent long enough that the honeymoon is over. I still have the support of the board, but if I don’t enthusiastically get behind this idea, I suspect that I will be headed into rough territory. My annual evaluation is coming up and, you know, if I hurt their feelings about this, they are going to take that out on me in some way. And the big problem is that none of these people is ever going to be mistaken for Fred or Ginger. Two board members are obese. Three are simply uncoordinated. The other two have no sense of rhythm. I know this. I have observed. Now I want to add that all seven of them are good people, good board members, but Dawg—they can’t dance. I fear that this event will be an embarrassment for them and the community, and it will all come down on my head. What should I do? HOW DO I JITTERBUG OUT OF THIS ONE? DEAR HOW DO I: We are wondering if your board members have other talents. Karaoke night perhaps? Open mike comedy night? What about “Poetry Night With the Board” as board members recite sonnets of their own composition? Do any of them play musical instruments? We assume that the two without rhythm can’t do that, but what about the other five? Could they form a quintet and offer a concert? We offer these suggestions simply because we have no good answers. Maybe you could bring in a dancing consultant who could deliver the bad news, instead of it coming from you. OH! Wait a minute!! Here’s an idea: how about getting your school lawyer to cite liability concerns! You could ask your school lawyer to make the board aware of the many uncoordinated, non-rhythmic, obese and out-of-shape people who live in your community. No one has to say anything negative about the board members—put the blame on their dancing partners! Get your lawyer to get them thinking about what might happen if one of those doofuses “trips and falls” while dancing with a board member at a school sponsored fundraiser. Catastrophe. Lawsuits out the gazoo. We think that’s your best course of action. Good luck!

DEAR DAWG: One of our board members is an enthusiastic motorcycle rider. He and his wife attended a rally in South Dakota last year. Before they even got back to Texas, the pictures of them made it back here, and they circulated around our community faster than a lawyer chasing an ambulance. Actually, it was only one picture that got a lot of attention. That would be the one of the board member’s wife sitting on the back of the bike. She was drinking what appeared to be a mug of beer. Can’t be absolutely sure of that, but that’s what it looks like. What we can be absolutely sure of is that she was very definitely not wearing anything above the waist. It was impressive photography, Dawg, and the woman appears to be in fine physical condition. But we are a conservative community, and I have gotten many calls asking me what the rest of the board intends to do about this. Thoughts? HAVE NOT SEEN THIS SIDE OF HER BEFORE DEAR HAVE NOT SEEN: Well, we expect some of them may go out and buy a Harley. Of course you have not seen this side of Mrs. Board Member before. That’s why they went to South Dakota! No one lives up there. We think you should refer these calls to the board member himself. This is his problem, not the board’s, and it is a PR problem more than a legal one. Board members are not prohibited by law from riding motorcycles, attending rallies or being married to people who pose for racy photographs. We know some communities where this episode would only guarantee the guy’s victory at the next election. DEAR DAWG: I am now licensed to carry a handgun, but my superintendent tells me I can’t have it at school. That’s where I need it! I thought they passed a law this year that employees have the right to have their guns in the car as long as the car is locked. I don’t intend to bring the gun into the school, but I thought I had the right to have it in the locked car. I was planning on having my planning period in the car, just in case anyone gives me trouble. LICENSED AND LOADED DEAR LICENSED AND LOADED: They did pass that law, but it does not apply to school districts. See SB 321, which added Sections 52.061 and .062 to the Texas Labor Code. The first section is what you have heard about. But Section 52.062 says that .061 does not apply to school districts, open enrollment charter schools, or private schools. So your superintendent is right, and we don’t think you ought to be having your planning period in the car anyway.

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


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LEGAL DEVELOPMENTS LABOR & EMPLOYMENT Retaliation DID THE SCHOOL DISTRICT RETALIATE AGAINST THE FORMER TEACHER? Case citation: Ogletree v. Glen Rose ISD, 2011 WL 4807891 (5th Cir. 2011)(unpublished). Summary: Joelle Ogletree worked for the Glen Rose Independent School District as a high school French and English teacher until October 2002, when the district terminated her employment. The district terminated Ogletree because of allegations that she had engaged in sexual conduct with up to four male students. Ogletree was indicted on two counts of sexual assault of a child. However, the prosecution ended in a mistrial and no further charges were brought in the matter. The Texas State Board for Educator Certification also investigated the charges and held a hearing on the revocation of Ogletree’s teaching certificate. Ultimately, however, SBEC did not revoke Ogletree’s teaching certificate. While the SBEC inquiry was pending, Ogletree filed suit against the district alleging, among other things, gender discrimination. After she filed the lawsuit, the district three times denied Ogletree’s request to volunteer at her daughters’ school. In denying the request, the district cited the ongoing litigation and prior allegations of sexual misconduct. Also, while the litigation was pending, Ogletree applied for two positions as a French teacher and English teacher at a high school within the school district. When Ogletree did not receive either of those positions, she sued the school district again claiming gender discrimination, as well as retaliation for filing the first gender discrimination lawsuit. The school district sought judgment in its favor prior to trial and attorneys’ fees, and the court granted both. The court awarded more than $24,000 in attorneys’ fees against Ogletree. Ogletree appealed the trial court judgment, but only with respect to the retaliation claims and award of attorneys’ fees. Ruling: The Fifth Circuit Court of Appeals affirmed the pretrial judgment in favor of the district but returned the case to the trial court in order to reduce the award of attorneys’ fees. Ogletree could not establish a retaliation claim against the school district because she could not demonstrate a causal connection between her prior discrimination lawsuit and the district’s failure to hire her. As evidence of retaliation, she produced three letters from the district stating that she would not be allowed to volunteer because of pending litigation (the prior lawsuit), and allegations of inappropriate sexual contact with students. According to the appeals court, the letters served as evidence of why the district did not allow her to volunteer, but did not address the hiring decisions at issue in this case. Also as evidence of retaliation, Ogletree claimed that another male teacher was hired despite

allegations that he had physically assaulted a student. The appeals court, however, considered that evidence insufficient to support the retaliation claim. The court explained that corporal punishment is allowed in Texas, while sexual abuse of children is not. Further, the district’s decision not to hire Ogletree due to the allegations of sexual misconduct was not arbitrary, given the liability that the district potentially could incur if Ogletree engaged in similar misconduct in the future. Because Ogletree failed to support her retaliation claims, the appeals court affirmed the judgment in favor of the district. With respect to the award of attorneys’ fees against Ogletree, the appeals court determined that they were excessive. Attorneys’ fees may be awarded to a prevailing civil rights defendant if the action was frivolous, unreasonable, or without foundation. According to the appeals court, the district was entitled to attorneys’ fees related to the gender discrimination claims because those claims were frivolous and had been the subject of prior litigation. However, the retaliation claims were not frivolous and the trial court improperly awarded attorneys’ fees related to the retaliation claims. The appeals court returned the case to the trial court to recalculate the fees. Things to Remember: This is the first of three cases reported this month in which the school district collected some attorneys’ fees from the other party. See also Alief ISD v. C.C., (page 17) and Doe v. Silsbee ISD (page 16).

Assault leave WAS THE TEACHER ENTITLED TO ASSAULT LEAVE? Case citation: Garcia v. United ISD, Dkt. No. 046-R100410 (Comm’r Educ. July 26, 2011). Summary: Cynthia Garcia worked as a teacher for the United Independent School District in October of 2008, when a male student made physical contact with Garcia during an altercation with another student. The male student was engaged in a physical struggle with a female student over a hall pass when he ran into Garcia’s back while she was standing by a railing. Garcia received Workers’ Compensation benefits for injuries she received in the incident until April of 2009, when the Workers’ Compensation Commission determined that she had reached Maximum Medical Improvement and gave her an impairment rating of 0 percent. On September 1, 2009, Garcia requested assault leave based on the October 2008 incident. The district denied the request and Garcia appealed the district’s decision. Ruling: The Commissioner upheld the district’s decision to deny Garcia assault leave. Under Texas Education Code § 22.003(b), a school district employee who is physically assaulted during the performance of the employee’s regular duties is entitled to the number of days necessary to recuperate from all physical injuries sustained as a result of the assault.


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Labor & Employment, continued According to the Commissioner, the record supported the finding that the student assaulted Garcia, in that he recklessly caused her bodily injury. The district’s decision to deny assault leave was due in part to Garcia’s failure to provide the district with any of her medical records or a signed release to allow the district to access her medical records. The Commissioner stated that the district was “well within its right to request and examine all relevant medical documentation, even those created prior to October 29, 2008.” Because Garcia failed to provide relevant medical records, the district was justified in denying assault leave. Garcia also was not entitled to assault leave because she did not need that time to recuperate from the injury sustained in October of 2008. The record showed that she had fully recovered by April of 2009, but did not request assault leave until September 1, 2009. Thus, the Commissioner upheld the district’s denial of assault leave to the teacher. Things to Remember: Notice that the student did not intentionally injure the teacher, and yet, the Commissioner holds that the teacher was assaulted. This is due to the definition of assault in Texas law which includes behavior that “recklessly” causes bodily injury. However, the case also stands for the proposition that teachers seeking assault leave have a duty to cooperate with reasonable requests to review medical records.

Nonrenewal DID SUBSTANTIAL EVIDENCE EXIST TO SUPPORT THE TEACHER’S NONRENEWAL? Case citation: Hettler-Booth v. Eanes ISD, Dkt. No. 063R1-0611 (Comm’r Educ. July 15, 2011). Summary: Mary Hettler-Booth worked for the Eanes Independent School District under a term contract as an elementary school special education teacher. After three separate incidents in which the teacher physically restrained a special education student, the district provided HettlerBooth notice of proposed nonrenewal. The reasons for the proposed nonrenewal included (1) the failure to fulfill duties and responsibilities, (2) incompetency or inefficiency in the performance of duties, (3) inability to maintain discipline over students, (4) insubordination or failure to comply with directives, (5) failure to comply with board policies, (6) failure to meet the standards of professional conduct, and (7) behavior that presents a danger of physical harm to a student or others. After a board hearing on the proposed nonrenewal, the district voted to nonrenew Hettler-Booth’s term contract. On appeal to the Commissioner of Education, she argued that substantial evidence did not exist to support the nonrenewal. Ruling: The Commissioner upheld the board’s decision to nonrenew Hettler-Booth’s contract. The record included evidence that the teacher’s action in restraining the student,

the type of restraint used, and the actions taken prior to restraining the student violated district policies. The district trained Hettler-Booth in a specific behavior management method known as Satori Alternatives to Managing Aggression (SAMA), for deescalating and preventing disruptive and aggressive behaviors. The district maintained that Hettler-Booth’s actions did not comply with the district’s policy and training on the use of restraint. To determine whether the board’s decision was supported by substantial evidence, the Commissioner had to consider whether reliable and probative evidence in the record as a whole support the reasons given in the notice for proposed nonrenewal. Here, the record contained conflicting evidence on whether the student struck Hettler-Booth in the stomach, spat on her, and tried to damage computer equipment. A teacher’s aide contradicted Hettler-Booth’s account of those incidents. The Commissioner observed that the board, as the fact-finder in this case, was entitled to make credibility determinations with respect to the conflicting evidence. The Commissioner will not second-guess those credibility determinations. According to the Commissioner, substantial evidence existed in the record to support the nonrenewal. Hettler-Booth also argued that the district violated Texas Education Code § 21.203(a) by not reviewing her most recent evaluations before making the nonrenewal decision. However, the record contained testimony concerning her most recent evaluations. Thus, the district did not violate Education Code § 21.203(a). The Commissioner upheld the teacher’s nonrenewal. Things to Remember: This is a good illustration of how the “substantial evidence” standard works. There was conflicting evidence in the record, but the record included enough evidence in support of the school board’s decision to satisfy the substantial evidence standard.

DID PROCEDURAL VIOLATIONS IN THE TEACHER’S NONRENEWAL LEAD TO AN ERRONEOUS DECISION? Case citation: Kasofsky v. McAllen ISD, Dkt. No. 065R1-0611 (Comm’r Educ. July 21, 2011). Summary: Margaret Kasofsky worked as a teacher under a term contract for the McAllen Independent School District when the district proposed her nonrenewal. Kasofsky requested a hearing and made a Public Information Act (PIA) request for certain documents. The board of trustees held a hearing on the proposed nonrenewal, but hired an attorney to preside over the hearing. Kasofsky requested a continuance of the hearing because the documents she requested had not been provided, but her request was denied. The attorney hired by the district conducted the hearing before the board but did not make a recommendation on the proposed nonrenewal. The board ultimately voted to nonrenew Kasofky’s contract and Kasofsky appealed.


10 On appeal to the Commissioner, Kasofky argued that the district violated Education Code § 21.207 and district policy DFBB(LOCAL) by having the attorney serve as a hearing examiner and preside over the hearing. She also claimed that the district improperly withheld requested documents under the PIA, improperly denied her a continuance, and did not provide a complete local record. Ruling: The Commissioner upheld the nonrenewal of Kasofky’s contract. The Commissioner observed that a school district’s nonrenewal decision will be overturned because of a procedural irregularity only when it is likely to have led to an erroneous decision. The Commissioner held that using an attorney to preside over the hearing did not violate the Education Code or board policy. Further, the board’s failure to initially include board policy DFBB(LOCAL) in the local record did not warrant overturning the nonrenewal decision. The policy was later included in the record and Kasofky failed to raise a timely objection. Thus, without a timely objection, the board policy was admitted into evidence. With respect to the documents that Kasofsky requested, the Commissioner held that teachers in a nonrenewal proceeding are not entitled to discovery because they do not have a property interest in a term contract beyond the contract term. Thus, it was not arbitrary or capricious to deny Kasofsky’s request for a continuance based on her complaint regarding the requested documents. Kasofsky failed to demonstrate a procedural violation that was likely to lead to an erroneous decision and the Commissioner, therefore, upheld her nonrenewal. Things to Remember: Attorneys take note: in a footnote addressing the authority of an appointed hearing examiner, the Commissioner stated that “It would be best practice for school districts to make explicit on the record that such a hearing examiner’s ruling can be overruled by the board, just as a board president’s rulings on procedure can be overruled by vote of the board.”

reassign Wheeler from assistant principal to classroom teacher. The district did not provide Wheeler with notice of proposed nonrenewal under Education Code § 21.206(a). Thus, the district was required to employ him in the “same professional capacity” for the following school year. The Commissioner concluded that the positions of assistant principal and classroom teacher were not in the “same professional capacity.” The Commissioner first looked at the contract, which stated that Wheeler was hired as a “professional employee” and determined that that term was too vague to properly describe Wheeler’s professional capacity. The Commissioner then compared Wheeler’s actual job-related duties in both positions. According to the Commissioner, an assistant principal has very different professional responsibilities than a classroom teacher. While a classroom teacher is focused on instruction, an assistant principal is focused on the management of the entire campus. In addition, certification requirements under the State Board for Educator Certification (SBEC) are also different for the two positions, requiring different skills and responsibilities. The Commissioner, thus, concluded that Wheeler’s reassignment from middle school assistant principal to classroom teacher was not a reassignment within the same professional capacity. The district violated Education Code § 21.206, and Wheeler was entitled to employment in the same professional capacity, as well as back pay and benefits. Things to Remember: Districts generally want to identify the position held as broadly as possible in order to facilitate reassignments. Thus, most contracts call for a teacher to be employed as a “Teacher” rather than “Third Grade Math Teacher.” Contracts will generally identify a person as “Teacher/ Coach” rather than “Social Studies Teacher/Head Basketball Coach.” But this case tells us that some categories are so broad as to be meaningless, i.e., “Professional Employee.” Examine your contracts.

Reductions In Force (RIF) Reassignment DID THE SCHOOL DISTRICT IMPROPERLY REASSIGN THE ASSISTANT SUPERINTENDENT TO A CLASSROOM TEACHER POSITION? Case citation: Wheeler v. Austin ISD, Dkt. No. 008-R31108 (Comm’r Educ. July 19, 2011). Summary: Robert Wheeler worked as a middle school assistant principal for the Austin Independent School District and held a three-year term contract as a “professional employee.” On June 12, 2007, the district informed Wheeler that he would be reassigned to the position of classroom teacher and that his salary would be reduced by $7,152.91. Wheeler appealed the reassignment to the Commissioner of Education, arguing that the reassignment was an improper change in “professional capacity.” Ruling: The Commissioner reversed the district’s decision to

DID THE SCHOOL DISTRICT PROPERLY NONRENEW THE EMPLOYEES AS PART OF A REDUCTION IN FORCE? Case citations: Cooper v. Killeen ISD, Dkt. No. 054-R20511 (Comm’r Educ. July 5, 2011); Burton v. Killeen ISD, Dkt. No. 053-R2-0511 (Comm’r Educ. July 5, 2011); Sheppard v. Killeen ISD, Dkt. No. 052-R2-0511 (Comm’r Educ. July 5, 2011); and Brown v. Killeen ISD, Dkt. No. 051-R1-0511 (Comm’r Educ. July 5, 2011). Editor’s Note: The following cases involve separate challenges by four Killeen Independent School District employees concerning their nonrenewals based on a reduction in force. Because the employees’ nonrenewals arose from the same RIF, they are discussed together below. Summary: On March 8, 2011, the Killeen Independent School District board of trustees voted to implement a reduction


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Labor and Employment, continued in force (RIF) and program change in the middle and high schools based on a financial exigency. The board identified the positions of assistant principal, counselor, campus instructional specialist, academic advisor, and teacher as positions subject to the RIF. The board did not specify each campus as separate employment areas, and did not specify departments, subjects, or teaching fields as separate employment areas. Rhonda Brown, a high school campus instructional specialist, Aloysius Cooper, a middle school campus advisor, and teachers, Roy Burton and Charles Sheppard, were among those who were nonrenewed based on the RIF. Following their nonrenewals, Brown, Cooper, Sheppard, and Burton filed separate appeals to the Commissioner of Education arguing that the district did not follow its own RIF policy. Ruling: The Commissioner granted the appeals filed by Brown, Cooper, Sheppard, and Burton, concluding that the district failed to follow its RIF policy. The Commissioner observed that there are two reasons for nonrenewal of a term contract due to a RIF, a program change or a financial exigency. A term contract may be terminated at any time due to a financial exigency that requires a reduction in personnel. Under the district’s policy DFF(LOCAL), a “program change” is “any elimination, curtailment, or reorganization of a curriculum offering, program, or school operation.” RIFs, under district policy, must be made in certain employment areas. In a RIF, the board first must identify the affected employment areas, and then the superintendent applies specific criteria to determine who will be targeted in each employment area. In this case, the board identified broad employment areas that included middle and high school assistant principal, counselor, campus instructional specialist, academic advisor, and teacher. The board did not limit the employment areas in any way. Thus, the employment areas should have been considered district wide, including all middle schools and high schools. Each employee holding jobs in those areas should have been subject to the criteria set out in the district’s RIF policy to determine whose position would be eliminated. Instead, each principal decided which employees would be included in the RIF, using their own subjective criteria. With respect to the nonrenewals of Brown, Cooper, Sheppard, and Burton, the district failed to comply with its RIF policy. The Commissioner reversed the decisions to nonrenew the four employees and ordered the district to reinstate them or pay them a year’s salary.

DID THE SCHOOL DISTRICT FOLLOW ITS RIF POLICY WITH RESPECT TO THE TEACHER? Case citation: Perry v. Mt. Enterprise ISD, Dkt. No. 055R1-0511 (Comm’r Educ. July 5, 2011). Summary: Naomi Perry worked as a teacher for Mt. Enterprise Independent School District, when the board declared a financial exigency for fiscal year 2012. Perry worked as the district’s in-school suspension and disciplinary alternative education

program teacher for the 2010-11 school year. The board acted to invoke a RIF and program change in the in-school suspension/AEP/DAEP program in response to the financial exigency. As a result, the district proposed the nonrenewal of Perry’s contract based on the RIF. After a hearing before the board, the board nonrenewed Perry’s contract. Perry appealed the nonrenewal claiming that the district did not actually implement the program change that resulted in the RIF and led to her nonrenewal. Ruling: The Commissioner upheld Perry’s nonrenewal based on the RIF. The district properly applied its nonrenewal and RIF policies. The district identified the ISS/AEP/DAEP as an employment area subject to the RIF and program change. Perry argued that the district could not eliminate that employment area because it is a state-mandated program. The Commissioner concluded, however, that the district continued to provide those services. According to the district, the ISS program was going to be held in the principals’ offices under the supervision of the principals and office staff. In addition, the DAEP program was implemented through a co-op arrangement with Carthage Independent School District. Texas Education Code § 37.008(d) allows a school district to provide a DAEP jointly with one or more other districts. Thus, the district complied with state-mandated ISS and DAEP requirements. Perry did not demonstrate a violation of the district’s RIF policy and, thus, the Commissioner upheld her nonrenewal. Things to Remember: Due to budget cutbacks, many districts may be looking to consolidate programs, or cooperate with neighboring districts for services. As this case illustrates, such actions may necessitate a RIF due to program change.

CAN THE BOARD IMPOSE A TIME LIMIT ON A NONRENEWAL HEARING? Case citation: Murray v. Chico ISD, Dkt. No. 060-R1-0511 (Comm’r Educ. July 7, 2011). Summary: Ken Murray worked as the district’s in-school suspension and disciplinary alternative education program (DAEP) teacher for the 2010-11 school year. The board, however, declared a financial exigency for fiscal year 2012, and voted to implement a RIF and program change for the district’s student health program, library program, DAEP, part-time high school FCCLA program, and elementary math specialist program. On March 28, 2011, the district proposed the nonrenewal of Murray’s contract as part of the RIF. Murray requested a hearing. At the hearing before the board, Murray requested additional time to present his case, beyond the one hour allotted by the board president. The board president denied Murray’s request for more time. Following the hearing, the board voted to nonrenew Murray’s contract. Murray appealed to the Commissioner complaining that he was not allowed enough time to present his case and that the nonrenewal based on the RIF was not supported by the evidence.


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Labor and Employment, continued Ruling: The Commissioner upheld Murray’s nonrenewal based on the RIF. The district followed its RIF policy in identifying employment areas that included Murray’s employment area of the DAEP. Further, the record showed that the district followed its RIF policy by applying the proper criteria to determine which positions in each employment area would be subject to the RIF. Murray failed to demonstrate any violation of the district’s RIF policy as it was applied to his nonrenewal. Murray also claimed that the district improperly limited the time he could use to present his case before the board. The board president limited the time for Murray to present his case to one hour. Murray argued that he did not know that he would be required to cross-examine witnesses within the one hour allotted for his presentation. Under Texas Education Code § 21.207(b), the district had the authority to impose a time limit for the hearing, and its time limit in this case was not arbitrary or capricious. The Commissioner upheld the district’s decision to nonrenew Murray. Things to Remember: Nonrenewal hearings are often lengthy, but as this case illustrates, a time limit can be imposed. The Commissioner noted that, “A time limit as short as one hour has been affirmed by an appellate court. Stratton v. Austin ISD, 8 S.W.3d 26 (Tex. App. Austin 1999, no pet.).

DO PROGRAM CHANGES HAVE TO BE NECESSARY TO SUPPORT A NONRENEWAL? Case citation: Ivie v. Lone Oak ISD, Dkt. No. 064-R1-0611 (Comm’r Educ. July 11, 2011). Summary: Justin Ivie worked for the Lone Oak Independent School District as the department head for its high school social studies program. In April of 2011, the school district voted to institute a program change that would result in a reduction in the number of teachers and identified the secondary grades social studies department as an employment area where the reduction would occur. As part of the program change, the district proposed the nonrenewal of Ivie’s term contract. After a hearing, the board voted to nonrenew Ivie’s contract. On appeal to the Commissioner of Education, Ivie argued that the district did not follow its RIF policy by not considering all teachers in the employment area and by not properly applying the criteria for selection of personnel subject to the program change. Ivie also claimed that the district violated the Texas Open Meetings Act by not providing proper notice of the meeting where his contract was proposed for nonrenewal. He also alleged that substantial evidence did not exist to demonstrate the necessity for the program change. Ruling: The Commissioner upheld the nonrenewal of Ivie’s term contract based on a program change in the district’s social studies department. The Commissioner first concluded that Ivie had not exhausted administrative remedies with respect to claims that the district violated the Texas Open Meetings Act and that the program change criteria were not applied to middle school and junior high school social studies teachers. Even if

he had exhausted administrative remedies, the Commissioner concluded that Ivie was not entitled to detailed notice of the board meeting in which his nonrenewal had been proposed. Further, the record did not show that the district employed any middle or junior high school social studies teachers. According to the Commissioner, the district properly employed the criteria for selection of personnel subject to the RIF or program change. The district policy set out the criteria, in order of importance: (1) certification, (2) performance, (3) seniority, and (4) professional background. All of the teachers in the employment area of social studies met the first criterion. The second criterion related to performance was to be based on appraisal records and written evaluation information. Ivie had the lowest appraisal score of the teachers with term contracts in the social studies department. The district’s policy gave the superintendent discretion to consider the third criterion related to seniority. If the superintendent determined that the differences in the appraisal scores were too insubstantial, he could but was not required to apply the third criterion. Here, the superintendent chose not to apply the third criterion. According to the Commissioner, the superintendent’s failure to apply the third criterion concerning seniority did not violate the district’s RIF policy. The Commissioner also rejected Ivie’s claim that substantial evidence did not exist to demonstrate the necessity for a program change. The Commissioner stated, “School districts are not limited to making program changes that are necessary.” The Commissioner does not determine whether a program change is necessary or unnecessary. When a reason for nonrenenewal in board policy is a program change, then such a change can be used for nonrenewal. Further, making a program change that is not necessary will not violate a district’s established reasons for nonrenewal. According to the Commissioner, “Whether or not the program change was necessary or unnecessary, wise or unwise does not affect the validity of a nonrenewal due to a program change . . . If only necessary program changes were allowed, school boards would not be permitted to change course offerings and numbers of class sections to provide the best education to students.” Thus, the Commissioner upheld Ivie’s nonrenewal based on a program change. Things to Remember: The language in this decision will be very helpful to school districts as they make program changes. This decision leaves local trustees and administrators with the flexibility they will need.

Salaries DID THE SCHOOL DISTRICT FAIL TO PAY THE TEACHER UNDER HER CONTRACT? Case citation: Albright v. Dallas ISD, Dkt. No. 063-R100608 (Comm’r Educ. July 26, 2011). Summary: Elizabeth Albright worked as a teacher for the


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Labor and Employment, continued Dallas Independent School District. Albright’s contract for the 2006-07 school year required the district to pay her 12 monthly installments of $4,245.17 beginning in September of 2006. However, the district incorrectly paid her a higher salary from November of 2006 to July of 2007. After the district discovered the error, it notified Albright that she would not receive a paycheck for August of 2007 because she had been compensated fully under the contract. Albright filed a grievance complaining of the district’s decision to withhold the August paycheck. After Albright’s grievances over the matter were denied, Albright filed an appeal with the Commissioner of Education. Ruling: The Commissioner denied Albright’s appeal over the district’s decision regarding the August 2007 paycheck. The record showed that Albright received all of the compensation that she had contracted to receive for the 2006-07 school year. The Commissioner observed that generally a party who pays funds under a mistake of fact is entitled to recover those funds. However, recovery of an overpayment will not be allowed when a party receiving the excess funds has changed positions or assumed liabilities they would not otherwise have assumed. To demonstrate that the district wrongly withheld the last paycheck, Albright had to show that, because of the overpayments, she changed positions or assumed liabilities that she would not have absent the overpayments. She failed to do so, however. The record showed that while Albright was in poor economic condition, it had nothing to do with the overpayments. The Commissioner held that Albright was not entitled to a twelfth paycheck. She had been paid fully under the contract and she otherwise did not demonstrate an entitlement to the additional payment. Things to Remember: The decision does not explain why a dispute over the August, 2007 paycheck was not resolved until July, 2011. Since the Commissioner ruled that the teacher was not entitled to the check in the first place, we won’t have to worry over who is responsible for four years’ of interest.

WERE MEMBERS OF THE TEACHERS UNION ENTITLED TO ADDITIONAL COMPENSATION UNDER THE SCHOOL DISTRICT’S SALARY SCHEDULE AND STATE LAW? Case citation: Valencia v. Ysleta ISD, Dkt. No. 034-R100207 (Comm’r Educ. July 26, 2011). Summary: Arlinda Valencia, Ysrael Valencia, Eva Gonzalez, Becky Beltran, and Gilbert de la Rosa, filed a grievance against their employer, Ysleta Independent School District on behalf of the “Ysleta Teacher’s Association/TSTA/NEA and All Other Members So Affected” complaining about their salaries. Specifically, they alleged that the district violated their contracts by failing to compensate them in accordance with state law. When the district denied their grievances, the employees appealed to the Commissioner of Education. On appeal, the teachers also alleged that the district discriminated against them because of their age.

Ruling: The Commissioner dismissed the age discrimination claim, but held that some employees may be entitled to additional compensation under the salary schedule. The Commissioner concluded that the employees waived the age discrimination claim because they did not properly present the argument with briefing and citations to statutes and case law. With respect to the salaries, the Commissioner observed that in 2006, the Texas Legislature mandated a pay raise for teachers for the 2006-07 school year in which a certified classroom teacher, full-time librarian, full-time counselor or fulltime nurse was entitled to $250, plus the same monthly salary they received in the 2006-07 school year under the district’s salary schedule for the 2005-06 school year, if that schedule was in effect for the 2006-07 school year. It would include any local supplement and any career ladder supplement the employee would have received in the 2006-07 school year. Under the district’s 2005-06 salary schedule, employees with a bachelor’s degree and at least 26 years of experience were to receive $51,248; employees with master’s degrees and at least 26 years of experience received $53,248; and employees with doctorate degrees and at least 26 years of experience were to receive $54,748. In addition, continuing teachers with more than 26 years of experience were to receive an additional $1,500 longevity pay. Thus, the Commissioner concluded that some members of the Ysleta Teachers Association/ TSTA/NEA may have been entitled to additional compensation. Specifically, those who were certified classroom teachers, fulltime librarians, full-time counselors or full-time nurses, and who had more than 26 years of experience for the 2005-06 school year were entitled to those base salaries, plus $250, and $1,500 longevity pay.

Termination GOOD CAUSE EXISTED TO TERMINATE THE TEACHER’S CONTRACT Case citation: Whalon v. Dallas ISD, Dkt. No. 047-R20511 (Comm’r Educ. June 22, 2011). Summary: Constance Whalon was a teacher with the Dallas Independent School District when the district provided her with notice of proposed termination of her term contract. The district alleged that Whalon changed students’ answers to the TAKS test. After a hearing before a certified hearing examiner, the board voted to terminate Whalon’s contract. Whalon appealed to the Commissioner of Education, claiming procedural irregularities in the due process hearing and arguing that good cause did not exist to support her termination. Ruling: The Commissioner upheld Whalon’s termination. Whalon first argued that the termination was improper because the district did not offer the notice of proposed termination into evidence during the termination hearing. The Commissioner concluded that the district did not need to submit the notice of proposed termination into evidence because the notice


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Labor and Employment, continued is considered a pleading. According to the Commissioner, pleadings are not evidence. Further, the notice of proposed termination was part of the local record in that it was attached to Whalon’s request for hearing before an independent hearing examiner. Even if as Whalon contended, the district failed to provide her with notice of proposed termination, all of the issues were tried by consent and Whalon did not object to testimony or argument concerning the reasons for her termination. Whalon next complained that the district failed to file the local record with the Commissioner in a timely manner. The local record was due on May 24, 2011. The district timely filed Volumes I thru IV of the local record. On May 24, 2011, the district faxed Volume V. On May 26, 2011, it filed a bound copy of Volume V. Although Whalon did not receive Volume V on May 24th, the district was not required to provide Whalon a copy of the record on May 24th. Further, supplementation of the record is allowed if part of the record is timely filed. The failure to file the bound copy of Volume V timely did not render the termination improper.

Palazzolo’s term contract and returned the case to the district to conduct another hearing with a different hearing examiner. The Commissioner observed that he may not reverse a school board’s termination decision for a procedural irregularity unless the irregularity was likely to have led to an erroneous decision by the board. Palazzolo first alleged that the hearing examiner asked for more compensation than allowed by law. Texas Education Code § 21.252(c) requires the Commissioner to set both an hourly rate and a cap for compensation that an independent hearing examiner may receive for a hearing. The maximum amount per case is $8,000. However, the hearing examiner in this case asked to be paid $26,693.31. According to the Commissioner, because an average person would be tempted to favor the district under these circumstances, the procedural irregularity of seeking compensation in excess of the maximum rate set by the Commissioner was likely to have caused an erroneous decision. The Commissioner reversed the termination and returned the case to the district to conduct another hearing with a different hearing examiner.

The Commissioner further held that good cause existed to support Whalon’s termination. The record conflicted sharply on whether Whalon changed students’ answers to the TAKS test. The hearing examiner weighed the conflicting evidence and determined that the allegations were true. The Commissioner stated that, “While another result could have been reached, the determination of cheating is supported by the record.” Cheating on the TAKS test constitutes good cause to terminate a term contract. Thus, the Commissioner denied Whalon’s appeal.

The Commissioner did not find any other procedural irregularities that were likely to lead to an erroneous decision. A hearing examiner is entitled to comment on the weight of the evidence and may question witnesses. Further, a hearing examiner is not required to make findings of fact as to any or all of the witnesses. The hearing examiner improperly talked to a reporter outside of the hearing, but this did not disadvantage either party. Finally, the Commissioner concluded that the hearing examiner was not required to recuse himself because his law partner was counsel in a case where Palazzolo’s lawyer represented an adverse party.

DID PROCEDURAL IRREGULARITIES RENDER THE TERMINATION IMPROPER?

Things to Remember: The request for additional payment did not go to the school board until after the board had decided the case. Nevertheless, the Commissioner held that the possibility of additional compensation might cause the average person to be tempted to “tip the scales” in favor of the school district. This is the first time this issue has come up, and it is a strong statement that hearing examiners must stick to the $8,000 cap. There is no authorization for the parties to waive that cap.

Case citation: Palazzolo v. Fort Worth ISD, Dkt. No. 038-R2-0311 (Comm’r Educ. June 29, 2011). Summary: Joseph Palazzolo worked for the Fort Worth Independent School District when the district proposed the termination of his term contract. Palazzolo requested a hearing before a certified hearing examiner. Following a “long and hard fought” hearing, the hearing examiner recommended Palazzolo’s termination. The board adopted that recommendation and voted to terminate the term contract. Palazzolo appealed, claiming a number of procedural irregularities in the way the hearing examiner conducted the hearing. Specifically, Palazzolo claimed that the hearing examiner asked the district for more compensation than allowed by law. Palazzolo also argued that the hearing examiner improperly commented on the evidence, questioned witnesses, and talked to a reporter about the case. Palazzolo claimed that the hearing examiner also should have recused himself from the case because one of his law partners was counsel in a case where Palazzolo’s attorney represented an adverse party. Ruling: The Commissioner reversed the decision to terminate

DID GOOD CAUSE EXIST TO TERMINATE THE CHIEF OF POLICE? Case citation: Allen v. Lancaster ISD, Dkt. No. 001-R20908 (Comm’r Educ. July 26, 2011). Summary: Samuel Allen worked as the chief of police for the Lancaster Independent School District, when the district received complaints that Allen had been seen directing traffic for a charter school. Allen was placed on leave with pay. While on leave, the district received another complaint concerning an auxiliary officer who claimed that Allen promised to pay him for work that he had not been contracted by the district to perform. The superintendent proposed Allen’s termination and, after a board hearing on the matter, the board voted to terminate Allen’s contract. Allen complained that the hearing


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Labor and Employment, continued did not provide him adequate due process. The board held a second hearing and ultimately voted to terminate Allen’s contract. Allen appealed his termination to the Commissioner of Education arguing that the district violated his employment contract and did not have good cause to terminate him. Ruling: The Commissioner determined that good cause existed to terminate Allen’s contract. First, the Commissioner held that Allen’s petition for review (i.e., appeal) was filed timely. Allen was required to file the appeal within 45 days of the district’s decision. It was undisputed that the appeal was filed more than 45 days after the first termination hearing. However, the district provided Allen with a second hearing. The Commissioner observed that if a board fails to give an employee or parent proper procedure, the board can hold another hearing to correct flaws or potential flaws in the original hearing if it is done promptly. Here, because the second hearing was held promptly, the timeline for Allen’s Commissioner appeal did not start to run until the date of the second hearing. Thus, the appeal was timely. Allen first complained that the district violated Texas Government Code § 614.023, which requires that complaints filed against law enforcement officers be given to the officer within a reasonable time after the complaint is filed. The complaints raised against Allen were filed in December of 2007 and February of 2008, but were not provided to Allen until May of 2008, when he received notice of his proposed termination. Notice is considered reasonable if the officer is not prejudiced by late notice in preparing an effective defense related to the complaint. The Commissioner concluded that Allen was not prejudiced by the late notice of the two complaints against him. The Commissioner next determined that good cause existed to terminate Allen’s contract. The record showed that Allen violated Texas Education Code § 37.081(c) and district policy CFE(LOCAL) by not getting written approval to provide law enforcement services to a charter school. Allen’s work for a charter school without prior approval constituted good cause for termination. In addition, Allen hired an auxiliary officer without authorization. According to the Commissioner, Allen’s actions in that regard also constituted good cause for termination. The Commissioner upheld Allen’s termination.

LIABILITY Personal liability WERE THE BOARD MEMBERS ENTITLED TO QUALIFIED IMMUNITY FROM THE RETALIATION SUIT? Case citation: Juarez v. Aguilar, __ F.3d __, 2011 WL 4509529 (5th Cir. 2011).

Summary: Antonio Juarez worked for the Brownsville Independent School District as the chief financial officer (CFO) when he recommended to the board of trustees that American Administration General (AAG) be awarded a bid for the district’s Stop Loss Insurance Coverage Contract. The recommendation created tension among the board, with some members claiming that Aguilar misinformed them about the AAG bid and others accusing him of lying. Shortly after the AAG recommendation, another employee filed a grievance against Juarez claiming that Juarez had lied to the board. Meanwhile, Juarez was told that if he resigned as CFO, he would be reassigned as the district’s grants administrator. Juarez submitted his resignation and accepted the reassignment. While the grievance was pending, Juarez learned of allegations from a district employee and a former board member that the district had engaged in bidding irregularities. The former board member allegedly promised Juarez a return to the CFO position if Juarez filed a grievance against another board member concerning the conflict arising from the insurance recommendations. Later, Juarez and his legal counsel reported to the Federal Bureau of Investigation (FBI) allegations of improprieties by the district’s board of trustees in the bidding process. Juarez also filed a grievance and rescinded his letter of resignation. The grievance ultimately was denied. Counsel for Juarez also objected to continuation of the other employee’s grievance, claiming that any action arising from it would be retaliatory based on Juarez’s actions and his reports to law enforcement authorities. Thereafter, the board took no action on Juarez’s contract for either the CFO or grants administrator position, effectively resulting in his nonrenewal. Juarez filed suit against the school district and the board members individually, claiming that the board members retaliated against him for exercising his First Amendment right to report criminal matters to law enforcement. The individual board members sought dismissal of the suit based on qualified immunity. The trial court denied their request for qualified immunity and the board members took an immediate, pretrial appeal to the Fifth Circuit Court of Appeals. Ruling: The Fifth Circuit held that the school board members were not entitled to qualified immunity. To establish a First Amendment retaliation claim, Juarez would have to prove that (1) he suffered an adverse employment decision, (2) his speech involved a matter of public concern, (3) his interest in speaking outweighed the governmental defendant’s interest in promoting efficiency, and (4) the protected speech motivated the defendant’s conduct. Adverse employment actions include discharges, demotions, refusals to hire, refusals to promote, and reprimands. Because the defendant board members brought this as an interlocutory (i.e. immediate pretrial appeal), the appeals court did not have jurisdiction to consider any factual disputes or challenges to the evidence. Instead, where factual disputes exist in an interlocutory appeal asserting qualified immunity, the appeals court accepts the plaintiff’s facts as true to determine whether the defendants are entitled to qualified immunity.


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Liability, continued Here, the court of appeals concluded that the board members were not entitled to qualified immunity. Taking Juarez’s allegations as true, the board members’ conduct fell within the elements of a First Amendment retaliation claim. Juarez alleged that, because he informed the FBI of illegal activities, the board members entered into an agreement with the superintendent not to extend Juarez’s contract. The fact that the board did not take a formal vote on Juarez’s contract did not change the result. The board members had fair notice that such an informal decision to retaliate against Juarez would violate his First Amendment rights. Thus, the appeals court upheld the denial of the board members’ qualified immunity defense. The appeals court returned the case to the trial court for further proceedings. Things to Remember: This is the first of three cases reported this month that discuss the contours of qualified immunity in federal court suits. See also Estate of C.A. v. Grier (page 16) and Morgan v. Swanson (18).

WERE THE PRINCIPAL AND SCIENCE TEACHER LIABLE FOR THE STUDENT’S DROWNING DEATH? Case citation: Estate of C.A. v. Grier, 2011 WL 3902750 (S.D. Tex. 2011) (unpublished). Summary: C.A., a 17-year-old senior at a high school in the Houston Independent School District, drowned in the school’s swimming pool during a physics class in which the students went into the pool as part of an experiment. The school’s swim coach served as a lifeguard during the course of the experiment but left when the experiment was over. The record showed that, as the class finished the experiment, some of the kids jumped into the deep end of the pool together. However, C.A. did not surface. The other students left the pool area without noticing C.A. Within a few minutes, the school’s swim coach noticed him in the water, pulled him out, and attempted to revive him. However, C.A. later died. The parents sued the school district, the principal, and the science teacher under 42 U.S.C. § 1983 claiming violations of their son’s constitutional rights. Specifically, the parents argued that the two officials violated C.A.’s “right to expect that school officials will follow city ordinances and their own standard policies.” A Houston city ordinance in effect at the time required lifeguards on duty at any time the pool was open to the public. Houston ISD pools were “open to the public” under district policy. Thus, according to the parents, the pool should have complied with the Houston ordinance requiring a lifeguard. In response, the principal and science teacher sought dismissal of the claims against them. They argued that they were entitled to qualified immunity. Qualified immunity generally protects government officials from personal liability unless the plaintiff can show that the official violated a clearly established statutory or constitutional right. Ruling: The trial court determined that the principal and the science teacher were entitled to qualified immunity. According

to the court, it is well settled that violations of state law or city ordinances are not actionable under 42 U.S.C. §1983. Further, nothing in the terms of the city ordinance or school policy suggested that they created individually enforceable rights. The failure to follow state law, in itself, does not violate the due process clause. C.A. had the right under the due process clause to not have school officials take affirmative action to cause his death. However, the parents did not allege that the principal and science teacher took action that caused the student’s death. They rely solely on the alleged violation of the Houston city ordinance. The failure to monitor children in public pools or beaches in violation of city ordinances or rules is not the type of affirmative action that gives rise to a constitutional violation. Further, the record showed that the students had been advised not to enter the deep end of the pool. A lifeguard had been on duty during the course of the experiment. Further, C.A. did not inform anyone that he could not swim. Those students who could not swim were instructed to stay out of the water and perform other duties for the experiment that did not require entry in the water. Because the parents could not demonstrate that the principal or science teacher took affirmative action that caused C.A.’s drowning, the court granted them qualified immunity. Things to Remember: Qualified immunity does not depend on the severity of the injury to the plaintiff, as this case illustrates. This is one of many cases in which federal courts refuse to “constitutionalize” personal injury claims.

PRACTICE AND PROCEDURE Attorneys’ Fees WAS THE CHEERLEADER’S LAWSUIT “FRIVOLOUS, UNREASONABLE OR GROUNDLESS” ENTITLING THE SCHOOL DISTRICT TO ATTORNEYS’ FEES? Case citation: Doe v. Silsbee ISD, 2011 WL 4056739 (5th Cir. 2011)(unpublished). Editor’s Note: The Legal Digest previously reported a Fifth Circuit decision in this case upholding the trial court’s dismissal of the lawsuit. [See, Doe v. Silsbee ISD; Texas School Administrators’ Legal Digest, Nov./Dec. 2010]. The decision reported below involves the school district defendants’ request for attorneys’ fees and costs. Summar y: H.S. attended high school in the Silsbee Independent School District when she alleged that she had been sexually assaulted at a party by two fellow high school students. The grand jury ultimately voted against indicting the alleged assailants. According to the lawsuit, H.S. allegedly was removed from the basketball cheerleading squad when she left one of the games. She had refused to cheer for one of the alleged assailants at a basketball game. It was alleged that H.S. was told that she had to either cheer when the others


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Practice and Procedure, continued cheered or go home. H.S. chose to go home and, as a result, she was removed from the cheerleading squad. The parents and H.S. sued the district attorney, the school district, several school district officials, and one of the alleged student assailants. The lawsuit claimed that (1) the district attorney deprived H.S. of her right to freedom from bodily injury and stigmatization under the Fourteenth Amendment; (2) the school district officials deprived her of a property interest in her position as cheerleader; (3) the district defendants violated her right to equal protection; and (4) each of the defendants violated her free speech rights. The trial court dismissed the case finding that the lawsuit failed to allege a constitutional violation. The trial court’s dismissal was upheld on appeal to the Fifth Circuit Court of Appeals. [See, Texas School Administrators’ Legal Digest, Nov./Dec. 2010]. Prior to the 5th Circuit’s ruling, the school district defendants requested an award of attorneys’ fees and costs associated with defending the lawsuit. The trial court awarded the school district their requested attorneys’ fees and costs totaling nearly $39,000, finding the case frivolous, unreasonable, and without foundation. The family appealed to the Fifth Circuit Court of Appeals. Ruling: The Fifth Circuit concluded that not each of H.S.’s claims were frivolous and, thus, the award of attorneys’ fees was excessive. To obtain attorneys’ fees for claims brought under § 1983, defendants who are prevailing parties must demonstrate that the plaintiff’s suit was “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly becomes so, regardless of whether the suit was brought in good faith.” To determine whether a claim is frivolous or groundless, courts will examine factors such as whether (1) the plaintiff established a prima facie case, (2) the defendant offered to settle, and (3) the court dismissed the case or held a full trial. Here, the Fifth Circuit concluded that H.S.’s equal protection claim was frivolous because it failed to state facts supporting an essential element of her claim – discriminatory intent on the part of the defendants. The due process claim was frivolous because it is well-settled that psychological injury alone does not constitute a violation of the right to bodily integrity under the due process clause. Further, freedom from false stigmatization does not constitute a liberty interest protected by the due process clause. H.S. also did not have a property right under the due process clause in participating in cheerleading. Thus, the prevailing defendants were entitled to attorneys’ fees with respect to H.S.’s equal protection and due process claims. The defendants, however, were not entitled to attorneys’ fees related to H.S.’s First Amendment claims. The main issue was whether H.S.’s silent protest of the basketball player constituted speech protected by the First Amendment. The appeals court determined that H.S. reasonably could have argued that the audience knew the background of the sexual assault and would have understood the meaning of her conduct. In addition, she reasonably could have argued that

(1) her participation in cheerleading was not school-sponsored speech or did not result in a “substantial interference with schoolwork,” or (2) forcing her to cheer was not “reasonably related to legitimate pedagogical concerns.” Although the trial court ultimate dismissed these claims, the trial court erred when it concluded that they were so lacking in arguable merit as to be groundless or without foundation. Thus, the appeals court reversed the award of attorneys’ fees for the school district, but only with respect to the First Amendment claims.

WAS THE SCHOOL DISTRICT ENTITLED TO ATTORNEYS’ FEES IN THE ADMINISTRATIVE ACTION BROUGHT UNDER THE IDEA? Case citation: Alief ISD v. C.C., __ F.3d __, 2011 WL 3964575 (5th Cir. 2011). Summary: C.C. attended school in the Alief Independent School District and qualified for special education. In February of 2005, the district filed a request for an administrative due process hearing with the Texas Education Agency, seeking to override C.C.’s parents’ refusal to allow the district to reevaluate C.C. The hearing officer assigned to the case issued a decision allowing the district to reevaluate C.C. without the parents’ consent. Following the ruling, the parents and their special education advocate attended meetings together and allegedly acted in a harassing and intimidating manner. The parents later requested a due process hearing claiming that the district failed to properly evaluate C.C. The district, in turn, filed a due process hearing request seeking a ruling that it had properly evaluated C.C. and provided him a free appropriate public education (FAPE). The district also sought a ruling that the parents’ due process complaint was brought for an improper purpose, in that it was designed to harass the district and subject them to further costs of litigation. The parents, in response, filed a motion to voluntarily dismiss their own complaint, but the district opposed the motion. The hearing officer ruled in favor of the district with respect to the evaluation and program provided to C.C. However, the hearing officer concluded that the district failed to prove that C.C.’s parents had brought their complaint for an improper purpose. The school district then filed suit in federal court against C.C. and his parents under the Individuals with Disabilities Education Act (IDEA), seeking an award of attorneys’ fees. The trial court dismissed the case and the school district appealed to the Fifth Circuit Court of Appeals. The main issue on appeal was whether a school district, after being declared in compliance with the IDEA, may bring a civil action for attorneys’ fees as a prevailing party against the parents on the grounds that the parents’ complaint was brought for an improper purpose, such as to harass, delay, or needlessly increase the cost of litigation. Ruling: The Fifth Circuit held that the school district could pursue litigation requesting attorneys’ fees and that the district,


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Practice and Procedure, continued in this case, was the prevailing party in the matter. The appeals court observed that “prevailing party” status is a predicate for an award of attorneys’ fees under the IDEA. A prevailing party is one that attains a remedy that both (1) alters the legal relationship between the school district and the child and (2) fosters the purposes of the IDEA. In this case, the appeals court held that the parents’ voluntary dismissal of their own complaint did not alter the legal relationship between the school district and the child. However, the hearing officer’s ruling declaring the district to be in compliance with the IDEA rendered the district the prevailing party. It altered the legal relationship between the parties in the district’s favor, because it effectively prevented C.C.’s parents from bringing another complaint making the same claims. According to the appeals court, this also fosters the purposes of the IDEA by settling the dispute over whether the school district was taking appropriate measures to educate the child. Thus, the district’s success in obtaining the hearing officer’s declaratory ruling made it a prevailing party. The appeals court returned the case to the trial court to determine (1) whether C.C.’s parents’ administrative complaint was presented for an improper purpose, and (2) if so, whether it is appropriate to award attorneys’ fees against the parents.

RELIGION Distribution of Religious Material COURT HOLDS SCHOOL EMPLOYEES IMMUNE FROM STUDENTS’ FIRST AMENDMENT CLAIMS Editor’s Note: This is the latest ruling in longstanding litigation over this issue in Plano ISD. The decision summarized below is limited to a discussion of whether the elementary school principals could be held personally liable for their actions in restricting the students’ distribution of religious material at school. Still pending are claims that school district student speech policies were unconstitutional as they were applied to the plaintiffs. Case citation: Morgan v. Swanson, __ F.3d __, 2011 WL 4470233 (5th Cir. 2011). Summary: The parents of Plano Independent School District elementary school students sued the school district and Lynn Swanson and Jackie Bomchill, the principals at two separate elementary schools. The parents alleged that Swanson and Bomchill violated the First Amendment when they placed restrictions on the distribution of religious items at school. Specifically, the suit alleged that at a winter break party, Swanson prohibited the distribution of candy cane-shaped pens with an attached message regarding the religious origin of the candy cane. According to the lawsuit, other children were allowed to bring non-religious items to the party, while those with religious messages were excluded.

Bomchill allegedly prohibited one parent from distributing tickets to a religious drama. On another occasion, Bomchill allegedly prohibited the same parent from distributing pencils at her daughter’s “half-birthday party” in the school cafeteria at lunch, and after school hours. The pencils bore a religious message. According to the lawsuit, the items were restricted based only on the religious viewpoint expressed. Bomchill also allegedly confronted the child on the school grounds after school hours when the student handed the pencils out to a small group of students who requested them. The suit claimed that Bomchill threatened the child with expulsion if she continued to pass out the pencils on school grounds. Swanson and Bomchill sought dismissal of the claims, arguing that they were entitled to qualified immunity. Qualified immunity generally protects government officials acting within their discretionary authority from suit unless their conduct violates clearly established law. The trial court denied the principals’ request for qualified immunity and the Plano ISD administrators appealed. On appeal to the Fifth Circuit Court of Appeals, the court initially ruled that Swanson and Bomchill were not entitled to qualified immunity. However, the appeals court agreed to hear the case en banc (i.e., review by the full court). The main issue before the court was whether, based on the facts as alleged in the lawsuit, it was “clearly established” at the time of the alleged misconduct that the principals’ actions in restricting the distribution of the religious material violated the First Amendment. Ruling: The Fifth Circuit held that principals Swanson and Bomchills’ conduct violated the First Amendment, but they were still entitled to qualified immunity because the law was not “clearly established” at the time. Judge Fortunato Benavides, writing for the majority on the issue of whether the law was “clearly established,” held that the law regarding student First Amendment rights to distribute religious material was not “clearly established.” According to Judge Benavides, “When educators encounter student religious speech in schools, they must balance broad constitutional imperatives from three areas of First Amendment jurisprudence: the Supreme Court’s school-speech precedents, the general prohibition on viewpoint discrimination, and the murky waters of the Establishment Clause. . . .‘The many cases and the large body of literature on this set of issues’ demonstrate a ‘lack of adequate guidance,’ which is why no federal court of appeals has ever denied qualified immunity to an educator in this area. We decline the plaintiffs’ request to become the first.” Joined by a separate majority of the judges, Judge Jennifer Walker Elrod addressed the constitutionality of the principals’ actions. According to Elrod, elementary students are protected by the First Amendment and “viewpoint discrimination against private, student-to-student, non-disruptive speech is forbidden by the First Amendment.” Thus, according to the majority of judges joining Elrod, Swanson’s actions related to items at the winter-break party and Bomchill’s conduct with respect to distribution of tickets to a religious play and distribution of the pencils, during and after school, violated the students’ constitutional rights. According to the court, a child’s private


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Religion, continued conversation and decision to share a pencil, a ticket, or a candy-cane shaped pen as alleged here, are protected from viewpoint discrimination. The principals, however, were still entitled to qualified immunity. The appeals court concluded that the law in that area was not “clearly established” enough to provide “fair notice” that their conduct violated the First Amendment. Things to Remember: This is a very important decision with significant implications for school operations. See our Web Exclusive interview with Karla Schultz of the Walsh, Anderson law firm, in which she discusses some of the practical implications of the court’s groundbreaking decision at www.legaldigest.com.

STUDENTS Discipline DID THE SCHOOL DISTRICT’S FAILURE TO PROVIDE ALTERNATIVE EDUCATION AFTER EXPULSION VIOLATE THE STUDENT’S CONSTITUTIONAL RIGHTS? Case citation: Swindle v. Livingston Parish School Board, __ F.3d __, 2011 WL 3962828 (5th Cir. 2011). Summary: Bobby and Tracy Swindle, parents of Morgan Swindle, sued the Livingston Parish School Board, the superintendent, the Louisiana Department of Education (DOE), and the Louisiana Board of Elementary and Secondary Education (BESE). Morgan was a high school student in the Livingston Parish when she left a school dance with a group of students and smoked marijuana off of school property. The group returned to the dance under the influence of marijuana. The principal learned of the students’ conduct and, with respect to Morgan, recommended that she be expelled for the remainder of the academic year. After a hearing concerning the recommendation to expel Morgan, the superintendent decided the expulsion should last a full calendar year, rather than the remainder of the academic year. The parents were informed of their right to request an administrative appeal of the decision, but they chose not to do so. Instead, they requested, before and after the hearing, that the board provide Morgan with alternative education. The board denied the parents’ requests without providing prior notice of the refusal or granting the parents a hearing concerning the request for alternative education. Under Louisiana law, suspended or expelled students were entitled to alternative education. However, any parish could request a waiver from that requirement. The Livingston Parish had requested such a waiver in prior years. However, at the time that the Swindles requested and were refused alternative

education for Morgan, no waiver had been sought by the parish for that particular school year. The parents homeschooled Morgan for the remainder of the 2005-06 school year and petitioned to have her return to the parish at the start of the 2006-07 school year. The board agreed, but required her to repeat her eighth grade year, rather than advance a grade level with the rest of her former classmates. The Swindles sued the parish and the superintendent claiming that they violated Morgan’s procedural and substantive due process rights and her right to equal protection of the law. The trial court granted summary judgment in favor of the defendants, dismissing all of the claims. The Swindles appealed the trial court judgment to the Fifth Circuit Court of Appeals. Ruling: The Fifth Circuit held that Morgan had a property interest in alternative education during her expulsion and that she could not be deprived of that interest without due process of law. The appeals court observed that a student has a property interest in continued education when the state creates a public school system and requires children to attend. Further, a student who has been removed from a regular public school, but is given access to an alternative education program, has not been denied the entitlement to public education. Thus, when state law creates an entitlement to public education, the student’s total exclusion from the educational process for more than a trivial period will constitute a deprivation of protected property and liberty interests subject to due process protections. According to the appeals court, Louisiana law created a property interest in public school education. The trial court had held that no property interest existed because Louisiana law also allowed the school to apply for a waiver to the requirement that it provide suspended and expelled students alternative education. The appeals court disagreed and held that Morgan was entitled to some kind of notice and hearing, either prior to or soon after she was deprived of her right to continued education in an alternative program. The record showed, instead, that the Swindles were not given any kind of notice, hearing or process in connection with the school board’s denial of alternative education. Thus, the superintendent and school board were not entitled to judgment in their favor on the due process claim. The appeals court, nevertheless, upheld the judgment in favor of the DOE and BESE on the grounds that those state agencies were entitled to sovereign immunity. Things to Remember: Property interests are created by state law, and thus it was the Louisiana state law that enabled the student to prevail in this case. Because the state law created a property interest, the federal guarantee of “due process” applied. The 5th Circuit previously decided that the removal of a Texas student to a DAEP does not deprive the student of property or liberty and thus does not require federal due process. See Nevares v. San Marcos CISD, 111 F.3d 25 (5th Cir. 1997).


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SPECIAL EDUCATION & DISABILITY LAW Evaluations WAS THE SCHOOL DISTRICT’S EVALUATION OF THE STUDENT APPROPRIATE? Case citation: Highland Park ISD v. Student, Dkt. No. 074SE-1210 (Hearing Officer Lynn E. Rubinett, June 29, 2011). Summary: The student qualified for special education under the speech impairment category and attended school in the Highland Park Independent School District. The district conducted a full and individual evaluation (FIE) in December of 2008, and the student’s Admission, Review, and Dismissal (ARD) Committee proposed dismissal from special education for the speech impairment. The ARD also determined that the student was not eligible for special education on the basis of a learning disability. The mother disagreed and requested an independent educational evaluation (IEE). The district agreed to provide the IEE. The IEE concluded that the student should have been identified as eligible for special education services under the eligibility categories of learning disability in written expression and “other health impairment” due to attention deficit hyperactivity disorder (ADHD). The student’s ARD Committee, however, concluded that the student did not have a learning disability in written expression because the IEE did not document a processing deficit in one of the broad cognitive areas. The ARD also determined that the student did not exhibit an educational need for special education services based on a learning disability. With respect to the ADHD diagnosis, the ARD concluded that additional testing was needed. Another FIE was conducted concerning the ADHD diagnosis, but the evaluation concluded that the student’s ADHD diagnosis was not corroborated by the testing. The evaluator determined that the student was making progress and, thus, if the student had ADHD, it was not adversely affecting the student’s educational performance. Thus, the student did not demonstrate a need for special education services. With much difficulty, the district and the parent tried to schedule an ARD meeting to consider the FIE. The ARD meeting was conducted without the mother. The district tried to include the parent in the ARD meeting by telephone, but the parent did not answer the phone. The ARD Committee, nevertheless, continued with its review of the FIE and concluded that the student did not meet eligibility criteria for an “other health impairment” due to ADHD. The mother disagreed and, again, requested an IEE. The district requested a due process hearing requesting a ruling that its evaluations and eligibility determinations were appropriate. The parent counterclaimed, challenging the district’s eligibility determinations. Ruling: The hearing officer ruled in favor of the parent, finding that the student was eligible for special education and related services as a student with an emotional disturbance and other health impairment. The district’s second FIE, related

to the ADHD diagnosis, failed to accurately and fully report all relevant data gathered concerning the student’s disability and need for special education services. The hearing officer concluded that the student’s chronic ADHD adversely impacted the student’s educational performance. In addition, the district failed to assess the student in all areas of suspected disability. According to the hearing officer, after the second FIE, the district had significant information to suspect the presence of an emotional disturbance. Further testing on that should have been conducted. The record showed that the student exhibited inappropriate behaviors and feelings, a general pervasive mood of unhappiness or depression, and a tendency to develop physical symptoms or fears associated with personal or school problems. Each of those issues adversely impacted the student’s educational performance, according to the hearing officer. Thus, the student was entitled to specially designed instruction and supports and interventions designed to meet her individual needs. The parent also claimed that the district denied her participation in the decision-making process by pre-determining the student’s eligibility, convening the eligibility ARD without her, and denying access to educational records. The hearing officer held that the district committed a procedural violation by holding the ARD meeting without the parent. The procedural violation impeded the parent’s opportunity to participate in the decision-making process and, thus, denied the student a free appropriate public education (FAPE). The hearing officer, however, concluded that the district did not pre-determine the outcome of the eligibility ARD or deny the parent access to educational records. The hearing officer ultimately ordered the district to convene an ARD meeting to identify the student eligible as a student with an emotional disturbance and other health impairment and develop an individualized education program (IEP) for the student.

FAPE THE SCHOOL DISTRICT PROVIDED THE STUDENT FAPE Case citation: Student v. DeSoto ISD, Dkt. No. 164-SE0311 (Hearing Officer Lynn E. Rubinett, June 13, 2011). Summary: The student qualified for special education under the autism and speech impairment categories and attended school, on and off, in the DeSoto Independent School District. The child had a severe to profound language disorder, and was non-verbal and unresponsive to auditory information. The student communicated through gestures, facial expressions, hand-leading, and self-help behaviors. The student was homeschooled during the 2008-09 and 2009-10 school years, until April of 2010, when the student re-enrolled in DeSoto ISD. The student attended school in the district April and May of 2010, and during the 2010-11 school year, until April of 2011, when the student again withdrew to be homeschooled. When the student first returned to the district in April of 2010, the student exhibited difficulties with the transition.


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Special Education & Disability Law, continued The behaviors included non-compliance, impulsivity, physical aggression, and lack of control, among other things. The student’s ARD met and planned for a full and individual evaluation (FIE). The district conducted a functional behavioral assessment (FBA) and a behavior intervention plan (BIP) to address targeted behaviors. The ARD recommended parent training and in-home training, which were declined by the parent. The ARD also recommended placement in the life skills class with a ratio of 1:1 or 1:2 and consultative speech therapy. Following the FIE, the ARD met again and added additional IEP goals and objectives and recommended extended school year (ESY) services. The district noted marked improvement in the student’s behavior between reenrollment in April and May 2010. Over the course of the summer and the 2010-11 school year, the parent raised a number of concerns including that (1) the student’s individualized education program (IEP) was improper because it was not based on accurate data, (2) the BIP contained inappropriate methods of working with the child, (3) the district provided inadequate speech services, (4) instruction using a “hand over hand” method was inappropriate, and (5) the parent was denied records and participation in the development of the student’s program. Believing that the student regressed under the district’s program, the parent requested a due process hearing. Ruling: The hearing officer determined that the district provided the student a free appropriate public education (FAPE). The hearing officer concluded that the student’s IEP was appropriate. It was based on the student’s present levels of performance, teacher observations, data collection, and parent input. The IEP was based on accurate data developed and obtained by the district. The student’s ARD Committee refined and revised the IEP several times at the parent’s request and it was individualized for the student. The IEP provided the student with educational benefit. The evidence showed that the student made meaningful progress in all areas. According to the hearing officer, the student’s program provided the student with individualized, coordinated services in the least restrictive environment. The parent failed to show a denial of FAPE. The parent also failed to show that the student’s placement or instructional techniques were inappropriate. The parent was not denied access to educational records or to the ARD decision-making process. Further, the record demonstrated that the district met its obligation to provide the student FAPE. Any regression by the student resulted from expected transition difficulties from having been homeschooled prior to reenrollment in the district. The program provided by the district resulted in notable behavioral progress that continued through the 2010-11 school year. The hearing officer, therefore, ruled in favor of the district.

DID THE SCHOOL DISTRICT ADEQUATELY ADDRESS THE STUDENT’S BEHAVIORAL PROBLEMS? Case citation: Student v. Corpus Christi ISD, Dkt. No. 148-SE-0211 (Hearing Officer Gwendolyn Hill Webb, July 1, 2011). Summary: The student attended school in the Corpus Christ Independent School District and was eligible for special education as a student with specific learning disabilities in basic reading, reading comprehension, reading fluency, math calculations, and math problem solving. The student began exhibiting significant behavioral problems with aggressive tendencies in January of 2009. The student, at one point, had been referred to the district disciplinary’s alternative education placement (DAEP). As a result of the student’s behaviors, the district conducted an FBA and developed a BIP. The student continued to have serious behavioral problems during the 2009-10 school year. In January of 2010, the district held an ARD meeting and developed a program for the student in the general education classroom only, with special education support. The Committee recommended a behavior specialist for support, but the specialist did not provide services until September of 2010. In addition, the specialist was discontinued when the student was placed in a behavior intervention classroom, known as the Successful Academic Inclusive Learning or “SAIL” program. The district conducted an FIE in November of 2010, which led the student’s ARD Committee to conclude that the student was eligible for special education and related services as a student with an emotional disturbance and learning disabilities. All instruction, except social skills, was in the general education classroom with daily monitoring by SAIL program personnel. However, his behavioral problems continued, he had issues with truancy, and also was failing academically. The parent requested a due process hearing complaining that the district failed to provide the student FAPE. Ruling: The hearing officer ruled in favor of the student, finding that the district denied him FAPE. The record showed that the district failed to implement effective behavior management strategies timely and punished the student for behaviors that were manifestations of his disability. The district also did not provide the student with appropriate related services of special education transportation. The district failed to provide appropriate academic programming which would have allowed the student to be successful and educated in the least restrictive environment. Education in the general education with SAIL support was ineffective, leading the student to fail in reading, regress in math, and fail the TAKS test. The evaluations provided by the district also were inadequate in the area of emotional disturbance. The district did not provide a counseling evaluation, or counseling goals and objectives as part of the student’s IEP. In addition, the


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Special Education & Disability Law, continued student’s BIP was too general and did not address the student’s specific behaviors. The student also proved that the district did not timely identify him as a child with a disability under the criteria of emotional disturbance. According to the hearing officer, the student’s long history of behavioral problems provided the district with sufficient information that the student was in need of additional assessments, a modified IEP that included transportation and extended school year services, and a more fully developed BIP. The district’s failure to meet those obligations denied the student a FAPE for an entire school year. Thus, the hearing officer ruled in favor of the student.

Reimbursement WAS THE STUDENT ENTITLED TO REIMBURSEMENT FOR THE PRIVATE PLACEMENT? Case citation: Student v. Birdville ISD, Dkt. No. 139SE-0211 (Hearing Officer Deborah Heaton McElvaney, June 22, 2011). Summary: The student resided within the Birdville Independent School District but attended private school. In the spring of 2009, the student began exhibiting negative behaviors, such as throwing chairs and overturning furniture. As a result of his violent and explosive behaviors, he had been asked to leave at least two private schools. In May of 2010, the student was diagnosed with Unspecified Episodic Mood Disorder and prescribed Risperdal, during a two-week stay at a psychiatric day treatment program. The program also developed a behavior system to help parents reinforce appropriate behaviors, which the parents incorporated in the home. The parents also were encouraged to seek help from the school district. In June of 2010, the parents contacted the district to obtain a special education evaluation and provided the district information concerning his behavioral history, psychiatric admission, evaluations, and medications. The district conducted an FIE in June of 2010, but ultimately concluded that the student did not manifest a mood disorder and did not qualify for special education. The district, therefore, did not offer any services or accommodations to the student. The parent enrolled the student in a private school as a result. They also requested a due process hearing, requesting reimbursement for the private placement. Ruling: The hearing officer held that the parents were entitled to reimbursement for the costs of the private school. The student had been diagnosed with a mood disorder prior to the school district’s assessment of the student. The hearing officer held that the district’s psychological assessment was inappropriate in that it (1) failed to give due weight to the student’s behavioral history, (2) discounted the results of its own instruments, (3) ignored a prior referral that included a very serious psychiatric diagnosis, and (4) ignored reports

from prior teachers and the parents explaining the depth of the student’s outbursts. The hearing officer also concluded that the student qualified for special education under the classification of emotional disturbance. Further, because of his disability, he was in need of special education and related services. The hearing officer also concluded that the district failed to timely provide test protocols to the parents before the due process hearing and had destroyed some of the test protocols relevant to the student’s claims. The destruction of test protocols and the failure to provide the remaining information denied the student FAPE. The district’s failure to appropriately assess the student, find him eligible for special education, develop appropriate IEPs, and make an educational placement available denied the student FAPE. The student was entitled to reimbursement for the private placement for the 2010-11 school year. The parents, however, failed to establish that the district could not provide the student FAPE during the 2011-12 school year. The district was ordered to reimburse the parents for the private placement and meet to develop a program for the student for the 2011-12 school year.

CASE UPDATE Special Relationship DID THE SCHOOL DISTRICT HAVE A “SPECIAL RELATIONSHIP” WITH THE STUDENT GIVING RISE TO THE DUTY TO PROTECT HER FROM OFFCAMPUS SEXUAL ASSAULT Citation: Doe v. Covington County School District, __ F.3d __, 2011 WL 3375531(5th Cir. 2011).

Editors’ Note: By a vote of 2 to 1, a three-judge panel of the Fifth Circuit Court of Appeals in August ruled that a student had stated viable constitutional claims against a school district when, on six separate occasions, the school released the student to an unauthorized adult who assaulted the girl off campus. This highly significant opinion regarding the constitutional duty to protect students from off-campus private violence was reported in the September issue of the Texas School Administrators’ Legal Digest. The case marked the first time that the Fifth Circuit recognized a cause of action under the “special relationship” theory against a compulsory public school for violations of a student’s substantive due process rights when the student was harmed by a private, third party. On September 26, 2011, however, the Fifth Circuit agreed to hear the case en banc, meaning that the full court will rehear the case. Thus, the decision will be reconsidered by the entire panel of Fifth Circuit judges.


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Case Study #6 – The high-tech Ms. Robinson. A female teacher accesses a freshman’s Facebook page and engages him in a conversation praising his improvement in her class. She then begins an informal conversation on what he has done over the weekend. They correspond back and forth casually for weeks this way. They then exchange text messages in which she asks him what he would like for his birthday. There are a number of times when she picks him up to drive him to school and to football games. Their relationship becomes more familiar and she advises him not to tell his parents of their communications. Can the employee be disciplined? Answer: Yes. The teacher in this scenario has not engaged in protected speech. This relationship began as a result of the teacher meeting the student in class. As such, the teacher’s communications with the student were made in her capacity as a public school teacher on a private matter, and not on a matter of public concern. Therefore, the teacher can be disciplined.16

Case Study # 7 – The modern day Norma Rae. Tara is a curriculum specialist and instructional coach. Her position at the school focuses on assisting inexperienced teachers and providing these teachers honest, private, and constructive criticism. On her off-duty hours, while at home, Tara maintains a public blog where she posts personal comments and complaints about her supervisor and fellow teachers. While she does not identify the subjects of her ire by name, she provides information such as their job position and title as well as personal attributes. Employees at the campus soon learn of the blog. Many of them express their displeasure to the principal and refuse to work with Tara. As a result, the Human Resources Director transfers Tara to a teaching position. According to the HR Director, the basis for the transfer is that Tara’s blog has “fatally undermined her ability to enter into trusting relationships as an instructional coach.” Obviously not one to take things lightly, Tara sues the HR Director alleging that the transfer is in violation of her First Amendment rights. Who wins?

Decision: The district wins. In the case of Richerson v. Beckon,17 the Court ruled in favor of the school district. The evidence considered by the Court included the refusal of several employees to work with Tara because they could not expect a trusting and confidential relationship. The Court observed that Tara’s online speech “had a significantly deleterious effect” on co-worker relations, employee relationships based on loyalty and confidentiality, and on the employee’s own performance of her duties. As such, her supervisor could make a “reasonable prediction” of workplace disruption.18 The transfer was acceptable because, “the legitimate administrative interests of the School District outweighed [the employee’s] First Amendment interests in not being transferred because of her speech.”19 Note, however, that while the employee was disciplined, she did not lose her employment entirely. Such a result might have led to a different legal outcome.

Case Study # 8 – Just one of the guys. After viewing the MySpace pages of some of his students, Jeffrey, a teacher decides to open his own account and profile

under the name of “Mr. Spiderman.” Jeffrey uses the account to communicate with students. After receiving a complaint about the profile, a school counselor gains access and reviews Jeffrey’s profile. She observes that the conversations between Jeffrey and students concerning their personal problems take on a peer-to-peer rather than student-to-teacher tone. She also sees pictures of naked men with inappropriate comments. Concerned about this, she addresses the matter with Jeffrey. In response, Jeffrey deactivates the account. However, he soon creates a new profile, “Apollo68,” which has the same students as friends. Administration receives complaints from students about this profile. Having had enough, administration decides not to renew Jeffrey’s contract. Jeffrey sues the school district claiming violations of his constitutional rights of due process, equal protection, freedom of speech, and freedom of association. Who wins?

Decision: The school district wins. In the case of Spanierman v. Hughes, the court found for the school district on all claims.20 The court noted that the basis for school officials’ action was Jeffrey’s communications with students, which they viewed as disruptive to school activities. Citing a specific exchange between a student and Jeffrey, the court pointed out that Jeffrey was not meeting school officials’ expectations to maintain professional and respectful associations with students. While Jeffrey’s profile included an anti-war poem he had written, which the court concluded could qualify as protected speech, the contract nonrenewal was not causally linked to the poem. Instead, the court found that the evidence was sufficient to show, as a matter of law, that Jeffrey’s contract was not renewed because of his inappropriate communications with students, speech that is not protected by the First Amendment. Handling Off-Campus Employee Speech Factors for school district officials to consider when faced with off-campus employee speech issues include, but are not limited to the following: 1. Does the off-campus speech or conduct violate district policy, state law, or educator ethical standards? If so, then the speech is not protected. For example, if the employee is engaging in communications with a student that meet the elements of soliciting a relationship with a student in violation of the Texas Penal Code.21

2. Is the employee’s speech being made in their capacity as a district employee? If so, then the employee can be disciplined for speech that is related to the employee’s official responsibilities. 3. Is the employee speaking as a private citizen on private matters? If so, consider the following before taking action: •

Is the off-campus speech or communication illegal?

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1601 Rio Grande, Ste. 455 Austin, TX 78701

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Did the speech or communication result in interference with school operations? • Did the speech or communication adversely impact the employee’s execution of their duties? If the answer to all these questions is “no,” then generally the employee should not be disciplined. 4. Is the employee speaking as a private citizen on a matter of public concern? If so, then ask: • Is there information to show the employee’s speech adversely impacted his or her performance of duties as an employee or interfered with school operations? • If so, do the district’s interests outweigh the employee’s constitutional right?

When an employee is speaking on a matter of public concern and that speech does not cause disruption to the school, the employee should not be disciplined. In general, an employee has the right, as a public citizen, to comment on matters of public concern. 5. As with student off-campus speech, districts should take special care that any disruption or interference with school operations is not a result of school district’s actions or reactions.

Appropriately responding to employee off-campus speech can be complex and confusing. This is because the answer is so fact-dependent. Therefore, before school district administrators take disciplinary action for an employee’s speech which has occurred off duty and outside school hours, it is highly recommended that they follow up with legal counsel. III. Conclusion In a world where not everyone thinks like Eeyore, the ability for people to post and announce every opinion and imaginative thought they may have can pose serious concerns for all employers. Unfortunately, the law does not move as

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

fast as technology. The case law concerning the First Amendment, specifically free speech in the cyber world, continues to develop. However, as noted above, administrators can take some guiding principles from the most recent cases. In the end, if an administrator is faced with an off-campus speech incident and is in doubt on how to proceed, he or she should count to ten, gather as much information as possible, and call their legal counsel so as to make a well-informed decision on how to proceed. EndnoteS

1. Tinker v. Des Moines Indep. Cmty. Sch. Dist, 393 U.S. 503 (1969). 2. 650 F.3d 205 (3rd Cir. 2011). 3. Id. at 207. 4. 650 F.3d 915 (3d Cir. 2011). 5. Id. at 929. 6. Id. 7. Id. at 932. 8. 647 F.3d 754, 764 (8th Cir. 2011). 9. 652 F.3d 565 (2011). 10. Id. at 571. 11. Id. at 576-77. 12. Id. at 577. 13. Tex. Penal Code §§ 22.07, 33.07. 14. 391 U.S. 563 (1968). 15. Id. at 568. 16. As a related matter, the newly revised Code of Ethics and Standard Practices for Texas Educators, found at DH (Exhibit), can serve as the basis for disciplining the educator. The amendments to the Code of Ethics address excessive and/or inappropriate educator to student communications, with a specific emphasis on electronic communication (defined to include cell phone, text messaging, email, instant messaging, blogging, or other social network communication). Notably, the new standards that have been added are not limited to on-campus/on-duty conduct. In addition, depending on the extent of the relationship between the teacher and the student, referral of the matter to law enforcement and/or Child Protective Services may be warranted. 17. 337 Fed.Appx. 637, 2009 WL 1975436 (9 th Cir. June 16, 2009). 18. Id. at 638. 19. Id. at 639. 20. 576 F.Supp.2d 292 (D.Conn. 2008). 21. Tex. Penal Code §21.12.


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