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

A Look inside . . . This month our lead article highlights an issue that is garnering considerable national attention: bullying. TSALD editor Jennifer Childress provides an excellent overview of the legal issues that educators must be aware of as they strive to create and maintain safe campuses (page 2). After that, we report 14 court cases, including three from the 5th Circuit and one from the Texas Supreme Court; four decisions from the Commissioner’s Office, five special education due process hearings and two Opinions from the Attorney General. Here are the highlights. Governance

When you call the doctor’s office these days they are likely to ask for your “DOB.” As we see such personal information used as a form of identifying us, the Texas Supreme Court grappled with the issue of whether such information should be available under the Public Information Act. See Texas Comptroller of Public Accounts v. Attorney General of Texas, (page 11). Citing concerns over identity theft, the Court ruled that the PIA does not require the disclosure of DOBs of public employees. Labor and Employment

The most recent 5th Circuit decision outlining the parameters of “due process” is reported in Gentilello v. Rege, (page 13). In a similar vein, take a look at Ray v. Houston ISD, (page 13) which involved a probationary contract.

North East ISD v. Kelley (page 14) is a long-running piece of litigation over a single day of work. When Mr. Kelley was ordered to work at the high school graduation in 2001, he balked, noting that graduation day fell beyond the 187 days required by his contract. Litigation ensued . . . and has continued for ten years now. Can the district require Mr. Kelley to work that day? Does this come under the standard contract provision pertaining to “other duties as assigned”? Duncan v. Fort Worth ISD (page 16) provides a textbook example of a nonrenewal handled properly. The Commissioner’s decision highlights several common arguments Also . . . • Don’t Get Pushed Around! The Law on Bullying and Harassment, Including Proposed Amendments to the Education Code (Jennifer Childress)

LEGAL DIGEST Volume 27, Number 2

TM

February 2011

that arise in such cases. The district followed procedures, met timelines and proved up a proper reason for the nonrenewal.

Can a teacher’s contract be terminated by a board vote of 2-1? Yes, according to Brown v. Sealy ISD (page 17). Liability

Charter school operators will want to take a look at Ohnesorge v. Winfree Academy Charter School, (page 18). The court held that the Texas Whistleblower Act does not apply to our charter schools. Special Education and Disability Law

The 5th Circuit addressed two special education cases. In T.B. v. Bryan ISD (page 19), the issue was the recovery of attorneys’ fees. In D.A. v. Houston ISD (page 20), the court issued a very important pronouncement about the application of several federal laws that are frequently cited in special education disputes. School lawyers should pay close attention as the decision will no doubt be cited in Motions to Dismiss in the future.

Student v. Alamo Heights ISD (page 23) addresses a district’s efforts to make ARD meetings more focused, directed and productive. The parent challenged some of the district’s practices, such as the limitation of a meeting to just one hour. This issue is coming up in many districts and so we are featuring it in this month’s web exclusive interview with Jan Watson. Ms. Watson is a special education attorney with the Walsh Anderson Law Firm and a member of our Editorial Advisory Board.

Student Issues

We are sure you will find the case of Young v. State of Texas (page 26) very interesting as it stems from a cell phone confiscation in the middle school. However, the court’s ruling is on the more technical issue of legal “standing” rather than the issue of school district authority. Nevertheless, we are sure you will find it interesting.

We’re happy to provide all this information this month along with a few random barks from the Dawg (page 10). Enjoy. • • •

Law Dawg (Jim Walsh) Legal Developments 25th Annual Legal Digest – TCASE Conference on Special Education Law Registration Form


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Don’t get pushed around! The Law On Bullying And Harassment, Including Proposed Amendments to the Education Code Jennifer Childress Attorney and Editor, Legal Digest Austin, Texas Introduction Headlines of student suicides over bullying have caught the public’s attention. Campuses have implemented new prevention programs. News of lawsuits over bullying against school districts and school administrators has also hit the papers. One recent blog post made a call to “Stop School-Bullying Suicides Caused by Do-Nothing Principals.”1 Another headline warns that “Schools May Lose Funding for Ignoring Bullying of Gay Students.”2 Is this a new or growing problem? The “It Gets Better Project,” a public campaign on YouTube aimed at lesbian, gay, bisexual, and transgender (LGBT) youth, demonstrates that this is not a new problem. The project, which has had more than 2 million channel views, features countless video testimonials from those who were bullied and lived to tell about it.3 The problem of bullying may not be new, but studies indicate that it is prevalent nationwide and in Texas. A 2009 study, from the Centers for Disease Control and Prevention,4 indicated that 18.7 percent of Texas students surveyed said they were bullied on school grounds during the previous year. Of the female students surveyed, 20.9 percent said they were bullied, while 16.5 percent male students said they were. Of the students surveyed nationwide, 19.9 percent said they had been targeted by bullies. 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

Another developing trend is the cyberbully. Cyberbullying takes place through electronic forms of communication and can have devastating consequences, including an increased risk of suicide among teens. One study showed that about 20 percent of 11- to 18-year-old students have been a victim of cyberbullying at some time.5

For those reasons and because of the recent media attention covering teen suicides over bullying, the issue has caught the attention of state and federal lawmakers as well. In October of 2010, the United States Department of Education Office for Civil Rights (OCR) issued a Dear Colleague Letter addressing bullying and harassment in schools. Even before the 82nd Texas Legislature convened on January 11, 2011, several bills had already been introduced to address the issue. The proposed legislation targets not only bullying on campus, but also violations occurring in cyberspace. This article will look at federal and state laws that address bullying in schools, review the guidance from the OCR, and examine proposed Texas legislation that might impact how school administrators handle this very difficult issue at the campus level. State And Federal Law Addressing Bullying Behaviors Texas Law The Texas Education Code and Texas Penal Code contain several provisions that deal directly with bullying and harassment. As discussed in more detail below, the Texas Legislature is reexamining some of these laws during the Legislative session now underway. What is the current state of Texas law?

Bullying, harassment, making hit lists. Texas Education Code § 37.001(a)(7) requires school districts to adopt a student code of conduct that prohibits “bullying, harassment, and making hit lists.” School districts must adopt and implement a discipline management program that provides for the prevention of and education concerning “unwanted physical or verbal aggression, sexual harassment, and other forms of bullying in school, on school grounds, and in school vehicles.”6 Notice that this provision does not address cyberbullying. More on this below.

Texas law defines “bullying” as “engaging in written or verbal expression or physical conduct that a school district board of trustees or the board’s designee determines: (1) will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property; or


3 (2) is sufficiently severe, persistent, or pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student.”7

The law defines “harassment” as threatening to cause harm or bodily injury to another student, engaging in sexually intimidating conduct, causing physical damage to the property of another student, subjecting another student to physical confinement or restraint, or maliciously taking any action that substantially harms another student’s physical or emotional health or safety.8 “Hit list” means a list of people targeted to be harmed, using: (1) a firearm9; (2) a knife10; or (3) any other object to be used with intent to cause bodily harm.11

Under the Education Code, a student who is enrolled in special education may not be disciplined for bullying, harassment or making hit lists until an admission, review, and dismissal (ARD) committee meeting has been held to review the conduct.12

Victim’s option to transfer. Current Texas law provides the victim of bullying an option to transfer to another classroom or campus. Under Education Code § 25.0342, on the request of a student who is a victim of bullying, the board of trustees or the board’s designee must transfer the victim to another classroom or campus. The board or designee, however, must first verify that a student has been a victim of bullying before transferring the student. The board may consider past student behavior when identifying a bully. The board’s determination is final and may not be appealed. Further, a student transferred under these provisions is not entitled to transportation services. Texas law’s provision allowing the victim to transfer runs counter to OCR guidance suggesting that the bully be the one moved and not the victim. According to the OCR, actions taken in response to a bullying complaint “should not penalize the student who was harassed” and should minimize the burden on the target’s educational program.13 For example, a school should not require the victim to change his or her class schedule. Look for changes in the law on this issue, as the Texas legislature may revisit it given the new OCR guidance on harassment and bullying detailed below.

Dating Violence. School districts are also responsible for monitoring and preventing dating violence. Under Texas Education Code § 37.0831, each school district shall adopt and implement a dating violence policy to be included in the district improvement plan. “Dating violence” includes “the intentional use of physical, sexual, verbal, or emotional abuse by a person to harm, threaten, intimidate, or control another person in a dating relationship.” Section 71.0021 of the Texas Family Code defines “dating relationship” as “a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.” Whether a dating relationship exists depends on (1) the length and nature of the relationship, as well as the frequency and type of interaction between the persons involved in the relationship.14 A school’s dating violence policy must address safety planning, enforcement of protective orders, school-based alternatives to protective orders, training for teachers and administrators, counseling for affected students, and awareness education for students and parents.

This law is a tall order for school districts and administrators of big schools. Some school districts have addressed these types of harassment complaints by making the parties sign a “Stay Away Agreement” in addition to whatever disciplinary measures are deemed appropriate. This written agreement, signed by the person accused of harassment, requires the offending party to stay away from the targeted student during the school day and at school-sponsored events. Under the agreement, the person may not approach, talk to, sit by, or have any contact with the other student at school or on school property, school buses, or at bus stops. The student is informed that any violation of the agreement or retaliation against the target, or the target’s friends or family, will result in further disciplinary action. Such agreements should be enforced for a reasonable period of time and reviewed on a regular basis.15 School districts implementing this kind of agreement will also have to consider how it will be monitored and enforced.

Online harassment. Although the Education Code’s anti-bullying provisions do not yet address cyberbullying, in 2009, the Texas Legislature enacted Texas Penal Code § 33.07 prohibiting online harassment. A violation under this statute occurs when a person uses the name or persona of another person to create a web page on or to post one or more messages on a commercial social networking site without the other person’s consent or with the intent to harm, defraud, intimidate or threaten any person. It is also unlawful to send electronic mail, instant messages, text messages, or similar communication that references identifying information belonging to any person without that person’s consent. This statute requires a showing that the person intended to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication, and intended to harm or defraud any person.

Disruptive Activity. The Texas Education Code also provides criminal penalties for certain conduct that may amount to bullying. A student commits a Class B misdemeanor under Education Code § 37.123 when a student, alone or in concert with others, intentionally engages in “disruptive activity” on the campus or property of any private or public school. “Disruptive activities” may include, among other things: (1) obstructing or restraining the passage of persons in an exit, entrance, or hallway of a building without the authorization of the administration of the school; and (2) obstructing or restraining the passage of a person at an exit or entrance to the campus or property or preventing or attempting to prevent by force or violence or by threats of force or violence the ingress or egress of a person to or from the property or campus without the authorization of the administration of the school.  

Disruption of classes. State law also prohibits the “disruption of classes” or other school activities, which can include bullying behaviors.16 A person commits a Class C misdemeanor offense if the person, on school property or on public property within 500 feet of school property, alone or in concert with others, intentionally disrupts the conduct of classes or other school activities.  “Disrupting the conduct of classes or other school activities” includes: (1) enticing or attempting to entice


4 a student away from a class or other school activity that the student is required to attend; and (2) preventing or attempting to prevent a student from attending a class or other school activity that the student is required to attend. Hazing. Education Code, Chapter 37, subchapter F, addresses student hazing. Section 37.151(6) defines “hazing” as “any intentional, knowing, or reckless act, occurring on or off the campus of an educational institution, by one person alone or acting with others, directed against a student, that endangers the mental or physical health or safety of a student for the purpose of pledging, being initiated into, affiliating with, holding office in, or maintaining membership in an organization.”

Hazing under the statute may include a whole host of activities, but the activity must subject the student to an unreasonable risk of harm or adversely affect the student’s mental or physical wellbeing. Instances of hazing, for example, can include physical brutality, sleep deprivation, exposure to the elements, confinement in a small space, or calisthenics. A student made to violate the law, or consume food, liquid, alcoholic beverages, liquor, drugs, or other substances is protected by this statue. The hazing law also covers activity that intimidates or threatens a student with ostracism, or that subjects the student to extreme mental stress, shame, or humiliation.

School officials who learn of a hazing incident, encourage or aid perpetrators, recklessly permit hazing to occur, or hear of hazing and fail to report it also may be subject to criminal penalties under Texas anti-hazing laws.17 However, immunity from civil or criminal liability is available to anyone who reports student hazing to school officials, participates in a judicial proceeding, or testifies for the prosecution in a hazing criminal proceeding.18 Terroristic threats. In extreme cases, a bullying incident might also rise to the level of a terroristic threat. A terrorist threat under Texas Penal Code § 22.07(a)(2) occurs, in the context of bullying and harassment, when a person threatens to commit any offense involving violence to any person or property with intent to place a person in fear of imminent serious bodily injury. Again, this involves extreme circumstances and requires a showing of intent on the part of the threatening party to place the victim in fear of serious physical harm.

State law covering “sexting.” Imagine the very real scenario where a student sends an explicit image of herself to her boyfriend and the boyfriend then forwards that to his friends after their breakup. According to data from the National Campaign to Prevent Teen and Unplanned Pregnancy and CosmoGirl.com, one in five teen girls say they have sent or posted electronically, nude or semi-nude images of themselves. Further, one-third of teen boys and one-quarter of teen girls said they have had nude/semi-nude images, originally meant to be private, shared with them.19 Under Texas law, as it stands today, the ex-boyfriend in the scenario above could face felony charges for possession or promotion of child pornography. Texas Penal Code § 43.26 makes it a felony to knowingly or intentionally possess material that visually depicts a child younger than 18 years of age, at

the time the image of the child was made, who is engaging in sexual conduct. A student also could be charged with obscenity under Penal Code § 43.23, which generally prohibits the promotion or possession of any obscene material or device. Student sexting falls directly under these statutes. The student convicted under the child pornography or obscenity laws could face devastating consequences, including jail time. In November of 2010, Texas Attorney General Greg Abbott announced that he and Senator Kirk Watson intend to propose new legislation that would make sexting a misdemeanor and allow judges to require offenders to participate in an education program concerning sexting’s long-term harmful consequences.20 This would soften the penalties for student sexting and put more focus on teaching students the impact of their actions on others without the life-long consequences resulting from the current child pornography and obscenity laws. Federal Civil Rights Statutes Addressing Harassment & Bullying Federal anti-discrimination statutes. A number of federal anti-discrimination statutes address bullying and harassment and impose additional responsibilities on school administrators to protect the civil rights of students. Title VI of the Civil Rights Act of 196421 prohibits discrimination on the basis of race, color, or national origin. Title IX of the Education Amendments of 197222 prohibits gender discrimination. In addition, Section 504 of the Rehabilitation Act of 197323 and Title II of the Americans with Disabilities Act of 199024 prohibit discrimination based on a disability.

Violations of these civil rights statutes may occur when the harassment is serious enough to create a hostile environment and the harassment is “encouraged, tolerated, not adequately addressed, or ignored by school employees.” 25 A “hostile environment” may exist when the conduct is “sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school.”26 A school district may be liable for damages when it acts with deliberate indifference to acts of harassment of which it actually knew.27 The Supreme Court has held that a school district that is sued for peer-on-peer harassment is not held liable for the actions of the harassing students, but instead is held liable for its own “deliberate indifference” to the students’ harassment and bullying.28 Deliberate indifference occurs when the school official’s response is “clearly unreasonable in light of the known circumstances.”29 Whether one student’s harassing conduct is sufficiently severe to give rise to a claim may depend on a number of factors. Those factors include: (1) the ages of the harasser and victim; (2) the number of individuals involved in the harassment; (3) the degree to which the victim’s education was affected; (4) the type, frequency, and duration of the conduct; (5) the harasser’s relationship to the victim; (6) the size of the school, location of the incidents, and context in which they occurred, and (7) other incidents of harassment at the school.30


5 In one of the leading cases concerning peer sexual harassment under Title IX, Davis v. Monroe County Board of Board of Education, a parent sued the school board claiming that her fifth-grade daughter was the victim of a pattern of verbal and physical sexual harassment by one of her classmates. The suit alleged that the girl reported the incidents to her teacher and her mother. The teacher assured the mother that the school principal had been informed as well. Despite those reports, the suit claimed that the district took no action against the other student. The harassment continued and the other student ultimately pled guilty to sexual battery for his misconduct. As a result of the incidents, the student’s grades dropped and, according to the lawsuit, the student’s father discovered a suicide note written by the girl. The Supreme Court held that school districts can be liable under Title IX when the district is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school’s disciplinary authority. Thus, the girl’s allegations were sufficient to state a Title IX claim against the school.

In Title IX peer-on-peer harassment cases, many times the focus will be on what action the district took to end the harassment. In Patterson v. Hudson Area Schools,31 genuine issues of material fact existed on whether the school district was deliberately indifferent to peer sexual harassment of the student. The record showed that the male student had been subjected to years of unrelenting teasing, name-calling, and physical harassment by his peers. The district responded mainly by reprimanding the perpetrators and placing the student victim in a resource classroom. Due to the harassment, which culminated in a sexual assault, the student left the school district and sued the school district. The court held that genuine issues of fact existed on whether the district acted with deliberate indifference. The court observed that a district is deliberately indifferent when its actions are ineffective and yet it continues to use those same methods to no avail. In this case, reprimanding the students was not enough to end the continuing harassment.32 Courts have held that gay students, and those perceived to be gay, are entitled to protection from peer harassment under Title IX. In Montgomery v. Independent School Dis. No. 709,33 a student alleged that for years he was subjected to almost daily teasing because of his perceived sexual orientation. According to the student, the verbal abuse was severe and continuing throughout his tenure in the school district, and escalated to the point of physical violence. He claimed that, as a result of the harassment, he stayed home on several occasions, did not participate in intramural sports, avoided the cafeteria and restrooms, and refused to ride the bus. The student sued the school district under Title IX and the Equal Protection Clause, alleging that despite knowing of the harassment, the district took insufficient action to stop it. The court, in that case, rejected the school’s request for dismissal of the suit, holding that genuine issues of material fact existed on whether the district responded to the student’s complaints with deliberate indifference. Thus, LGBT students who are bullied at school can use Title IX’s protections against a school district. School districts in violation of Title IX face the withdrawal of federal funding, injunctive relief, and damages.34

Similar cases have arisen for violations of the ADA and § 504. In S.S. v. Eastern Kentucky University,35 a disabled student brought suit for violations of the ADA and § 504 claiming that the school failed to stop bullying and harassment against him based on his disability. The student alleged that the peer-onpeer harassment he experienced, which included numerous verbal and physical altercations with other students, created a hostile learning environment, and that the school failed to adequately protect him from it. To state a claim under either the ADA or § 504 against a school receiving federal financial assistance, a plaintiff must show that he or she is: (1) disabled under the statute, (2) he or she was harassed based on a disability, (3) the harassment was sufficiently severe or pervasive that it altered the condition of his or her education and created an abusive educational environment, (4) the school knew of the harassment, and (5) the school was deliberately indifferent to it. The trial court, in this case, held that the school had not been deliberately indifferent to the harassment. The record showed that school officials responded to all of the alleged incidents involving the student of which they were made aware. The responses included conducting individual and group interviews with classmates, instructing classmates not to taunt the student, arranging for outside speakers to talk to students about harassment and bullying, monitoring the student, disciplining those who were at fault, calling police, having the police talk to offending students, and calling parents to discuss the problems. Because the school, in this case, took multiple affirmative steps to address the harassment, the court determined that the school had not been deliberately indifferent to the harassment. These cases demonstrate that school officials can avoid a finding of deliberate indifference if they can demonstrate a genuine effort to stop bullying, not by just disciplining the alleged bullies, but by taking a broader approach to the problem. Schools should consider talking to the students and their parents, arranging talks by outside speakers, hosting discussion group sessions, and training staff, students and parents on how to recognize bullying and what to do about it. The courts have made it clear that reprimanding offending students simply is not enough. 42 U.S.C. § 1983. Litigants can also seek relief for harassment under 42 U.S.C. § 1983 for violations of the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment.36 Title IX is not the exclusive mechanism for addressing gender discrimination and/or student-to-student sexual harassment. Section 1983 is a federal statute that permits individuals to recover monetary damages for deprivations of federal constitutional or statutory rights that occur under color of state law.

To establish liability against a school district, plaintiffs must show that the harassment was the result of a school district custom, policy, or practice that is the moving force behind the constitutional deprivation.37 School officials can also be sued individually under § 1983. For example, a school official can be held personally liable when a student is sexually harassed by another student if: (1) the school official actually knew of the sexual harassment, (2) the school official was deliberately indifferent to the harassment, and (3) the deliberate indiffer-


6 ence caused the violation of the student’s constitutional rights. Qualified immunity is a defense against individual capacity lawsuits under § 1983. It protects governmental officials from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.38

Due Process Clause. The Due Process Clause provides that “no State shall . . . deprive any person of life, liberty, or property without due process of law.”39 A student’s bodily integrity is a liberty interest protected by the Fourteenth Amendment. When the harassment is by a third party (i.e., another student), the school district generally is not liable under § 1983.40 Plaintiffs in peer harassment cases have argued that an exception to that general rule exists because there is a “special relationship” between the governmental entity and the individual. However, courts have found that such a special relationship exists only when a governmental entity has custody of a person against his will, either through imprisonment, institutionalization, or other similar restraint of personal freedom. Parents of injured children have argued that compulsory attendance laws create a special relationship between a school district and its students, but courts with jurisdiction over Texas have uniformly rejected that argument.41 Jurisdictions outside of Texas have recognized a “statecreated danger” exception as well, reasoning that if the state creates a danger then the state assumes a heightened duty with respect to that danger. The Fifth Circuit Court of Appeals has not recognized the “state-created danger” theory of liability.42 Nonetheless, courts that have recognized this theory have determined that to establish a “state-created danger” claim, a plaintiff must show that (1) the school district took affirmative action to create a danger or to render the student more vulnerable to the danger, (2) the danger to the student encompassed an immediate threat of harm, and (3) the school district exhibited deliberate indifference to the potential harm to the student. Litigants in peer harassment lawsuits may continue to push the special relationship and state-created danger theories of liability.43 Suits brought under § 1983 are attractive to them and their attorneys because the statute allows for personal liability against school administrators, damages, and attorney’s fees.

Equal Protection Clause. The Equal Protection Clause of the Fourteenth Amendment guarantees that “no states shall . . . deny to any person within the jurisdiction to the equal protection of the laws.”44 To establish a claim against a school district under the Equal Protection Clause, as enforced through § 1983, a plaintiff must show that he or she is a member of a class of individuals that is being treated differently from similarly-situated individuals that are not in that class. Some courts have recognized equal protection claims against school districts for their failure to prevent peer harassment based on sexual orientation or perceived sexual orientation. In Montgomery v. Independent School Dist. No. 709,45 the court held that the plaintiff had stated a viable equal protection claim when he alleged that the school district discriminated against him on the basis of sex and sexual orientation by responding to his bullying complaints differently than to those made by

similarly-situated female students and male students harassed by female students. To prevail on this type of equal protection claim, a plaintiff would have to show the district had a policy or custom of responding to sexual harassment complaints more favorably when lodged by similarly-situated female students or male students perceived to be heterosexual.

Federal laws provide the bullied student a number of legal avenues to seek redress from their school and school officials. Generally, to avoid liability under each of these statutes, the district and the individual school employee must show that they did not act with deliberate indifference to known complaints of harassment and took reasonable steps to remedy the situation. Guidance From The Office of Civil Rights Dear Colleague Letter How do school districts and school administrators avoid liability under the federal anti-discrimination laws? In October of 2010, Assistant Secretary for Civil Rights Russlynn Ali issued a Dear Colleague Letter on behalf of the U.S. Department of Education to offer guidance on how to comply with federal laws aimed at harassment and bullying. Recognizing each school’s “important responsibility to maintain a safe learning environment for all students,” the Letter serves as a reminder to school administrators that some student conduct that falls within a school’s anti-bullying policy may also trigger a school’s responsibilities under federal anti-discrimination laws. The letter is a must-read for any school administrator. The Dear Colleague Letter can be found at http://www2.ed.gov/about/ offices/list/ocr/letters/colleague-201010.html.

With respect to bullying and harassment, the OCR enforces Title VI, Title IX, Section 504, and Title II of the ADA, prohibiting harassment based on race, color, national origin, sex, and disability. The OCR recognized that these federal statutes do not specifically address harassment based on sexual orientation and religion. Nevertheless, it advises schools to take measures to prevent those forms of bullying “to protect students from the physical and emotional harms that it may cause.” Further, the OCR explained that harassment against students of a religious group triggers a school’s responsibilities under Title VI when the harassment is based on the group’s “actual or perceived shared ancestry or ethnic characteristics, rather than solely on the members’ religious practices.” Students from any discrete religious group may also share, or be perceived to share, ancestry or ethnic characteristics (i.e., Jewish, Muslim, or Sikh students). Thus, for example, any anti-Semitic or similar harassment may fall within the protections of Title VI. Under the federal civil rights laws, school officials are required to address incidents of bullying and harassment about which they know or reasonably should have known. When is a school put on notice, thus, triggering the responsibility to take action? Some situations may be obvious because they happen in plain sight, are widespread, or are well-known to students and staff. Such “obvious signs of harassment” are sufficient to put the school on notice. In other cases, a complaint might trigger an investigation, the results of which put a district on notice of harassment.


7 When school officials are put on notice of a problem or complaint, they must take immediate and appropriate action to investigate and remedy the situation. OCR guidance calls for “prompt, thorough, and impartial” investigations. Further, “[i]f the investigation reveals that discriminatory harassment has occurred, a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring.”46 According to the OCR, punishing the perpetrator is not enough. Instead, school officials must do everything possible to eliminate the hostile environment, address its effects, and take steps to ensure that harassment does not recur. Thus, to avoid violations of federal anti-discrimination laws, school officials have to act swiftly and decisively to end the harassment and do more than just discipline the harassing party.

Proposed Texas Legislation Related To Bullying At the opening of the 82nd Texas Legislative Session, a number of bills already had been introduced that directly address bullying in schools. Below is a summary of some of those bills. H.B. 224 (Strama), S.B. 245 (Davis) and S.B. 242 (Davis, Wendy): This legislation amends portions of Chapters 25, 37, and 39 of the Education Code relating to bullying, including cyberbullying, in public schools. It first amends Education Code § 21.451(d) to provide staff development training in preventing, identifying, responding to, and reporting incidents of bullying. It also amends Education Code § 25.0342 so that it provides for the transfer of the person who has engaged in bullying, rather than the victim.

The bill would also add a new § 37.0832 of the Education Code which provides a more comprehensive definition of bullying. Under this provision, bullying would mean “engaging in written or verbal expression or physical conduct, including an action motivated by a perceived imbalance of power based on another student’s actual or perceived personal characteristics, behavior, or beliefs or by another student’s association with a third person and based on the third person’s characteristics, behavior, or beliefs, that: (i) has the effect or will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property; (ii) is sufficiently severe, persistent, or pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student; (iii) interferes with a student’s educational opportunities; or (iv) substantially disrupts the orderly operation of a school.” Cyberbullying is included and defined as “bullying that is done using electronic communication, including electronic media.”  This section applies to bullying that: (1) occurs on or is delivered to school property or to the site of a school-sponsored or school-related activity on or off school property; or (2) occurs off school property or outside of a school-sponsored or school-related activity, if the conduct interferes with a student’s

educational opportunities or substantially disrupts the orderly operation of a school or school-sponsored or school-related activity.

Board policy concerning bullying must prohibit bullying and retaliation and provide for appropriate intervention for a student who engages in bullying or falsely accuses another of bullying. It also must require each school principal or the principal’s designee to develop a campus strategy for protecting each campus student from being bullied or related retaliation. The interventions may include appropriate discipline to reduce the risk of incidents of bullying and assistance to a victim of bullying or a student engaging in bullying. The policy also must establish a procedure for reporting an incident of bullying within a district and on each district campus that specifies the action a student should take in case of bullying. Finally, policy must address any other issue concerning bullying that the board of trustees determines to be appropriate. Reporting procedures must enable a student to report an incident of bullying to any school district employee; require the posting of a list on each campus that identifies each person who has special training or designation to receive a report of an incident of bullying;  may establish an anonymous reporting system; and may include any other provision concerning reporting an incident of bullying that the board of trustees determines to be appropriate.

This bill also places specific requirements on school principals for acting on reports of bullying. For example, “not later than the second school day after the date a school principal acquires knowledge of an incident of bullying, the school district superintendent or the superintendent’s designee shall, by telephone or electronic communication, provide notice of the incident to the parent or guardian of the victim of the alleged bullying and the parent or guardian of the student who allegedly engaged in the bullying.” The victim can request a waiver of parental notification.

Notice of policies regarding incident reports must be given to each district student, the parent or guardian of each district student, and each district employee or volunteer. The notice must be posted on the district’s website and at each district campus in the cafeteria, on each major bulletin board, in a prominent place in the area of campus administrative offices, and at any other appropriate location determined by the school principal. The policy also must be included in each student and employee handbook. School districts will be required to provide training to students, parents, and district administrators and other district employees and volunteers who have significant contact with students.

Finally, the bill amends Education Code § 39.306, to require districts to include information concerning bullying, including cyberbullying, harassment, and sexual harassment in the board’s annual report describing the educational performance of the district. The report must include “a statement of the number, rate, and type of incidents of bullying, including cyberbullying, harassment, sexual harassment, and discrimination against any student on the basis of the actual or perceived race, ethnicity, color, religion, gender, sexual orientation, national origin, or


8 disability of the alleged perpetrator or victim that occurred on each district campus, to the extent permitted under the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).”

S.B. 205 (Whitmire): This bill would add Education Code § 37.0832, titled “School District Policy to Prohibit Bullying, Cyberbullying, Harassment, and Intimidation.” It retains the existing definition of bullying set out in Education Code § 25.0342, but adds “Cyberbullying” to mean the use of any electronic communication device to engage in bullying, harassment, or intimidation. Under this provision, each school district shall adopt a policy prohibiting bullying, cyberbullying, harassment, and intimidation. It requires districts, to the extent practicable, to develop the policy after consultation with district students, parents and guardians of district students, school employees and volunteers, district administrators, and community representatives. The policy must include, among other things, the procedure for reporting incidents, the ability to report incidents anonymously, a prohibition against retaliation, descriptions of the types of conduct prohibited, as well as the consequences for violations of this statute. It also provides for immunity to those who report an act of bullying, from a cause of action for damages arising from any failure to remedy the reported act. H.B. 170 (Raymond): This bill amends Education Code § 37.006 and authorizes placement in a disciplinary alternative education program, any student who engages in bullying on or within 300 feet of school property, or while attending a schoolsponsored or school-related activity on or off school property, including while on a school bus or at a school bus stop.

H.B. 130 (Alvarado): This bill amends Human Resources Code § 40.074 to create an anti-bullying hotline. It would allow students to report an incident of bullying by calling a toll-free telephone number or using an internet website. Reports will be monitored and forwarded to the school principal of the person accused of bullying or the local police department or sheriff’s office, if the alleged bully is not enrolled in school.

The focus of the legislation proposed is on providing a more comprehensive definition of bullying, particularly with respect to cyberbullying. Amendments also focus on creating new policies related to training, reporting, and acting on allegations of bullying. Keep in mind that the bills summarized above are only proposed legislation. Only time will tell what the legislature will do with these proposals. Changes in the law are likely, however, and so school districts will need to be updating their policies this summer to incorporate the new laws and policy requirements. Strategies For Dealing With Bullying Complaints Now, knowing the state of Texas and federal law on bullying and harassment, what steps should you take when you become aware of a problem on your campus? 1. Know your policies. The school district policy manual should be one of the first places administrators should

go to determine what action should be taken when faced with allegations of bullying or harassment. TASB policies FB, FFH, and FFI deal with Equal Educational Opportunities, discrimination, harassment, bullying and retaliation, among other things. Policy FFF addresses student safety and Policy FFG concerns child abuse and neglect. Please consult each of these policies, as well as your complaint policies. Given the proposed legislation on bullying and harassment, districts may be reexamining these policies before the next school year.

2. Train all personnel to recognize bullying and the policies and procedures involved in handling the issue. All district personnel who work in close contact with students should be familiar with district policies and procedures concerning harassment and discrimination. Training should include steps on what to do when they observe or receive a complaint of bullying. 3. Designate personnel to take reports and establish a reporting procedure. Designating certain staff members who can take reports of bullying and investigate those complaints will go a long way in seeing that cases do not fall through the cracks.

4. Advertise policies and methods for reporting. Make your policies readily accessible to staff, students, and parents. Distribute information concerning prohibited conduct, and consequences, as well as reporting procedures. This information should include contact information of those designated to take reports of harassment and bullying.

5. Educate students on prohibited conduct under your Student Code of Conduct. Establish a training program for students on how to deal with these issues in school. Many schools now have implemented bullying prevention programs. Document the use of these programs and continue to monitor their effectiveness. There are many internet resources on school prevention programs. For example, U.S. Department of Education website, www.bullyinginfo.org has information on prevention efforts and other bullying resources.

6. Document complaints. Set up a procedure in which complaints can be documented. Create a standard complaint form that allows the complaining party to detail the incident so that an investigation can be initiated. 7. Conduct immediate and thorough investigations. According to the Department of Education, investigations should be “prompt, thorough, and impartial.”47

8. Take prompt and effective steps to end the harassment, eliminate any hostile environment, and prevent recurrence. These steps must be taken regardless of whether the student makes a complaint, asks the school to take action, or identifies the harassment as a form of discrimination.48 Appropriate steps may include separating the students, providing counseling


9 to the students, disciplinary action, and training for the alleged harasser, as well as for the entire school community. A school may also need to provide additional services to the student who was harassed in order to address the effects of the harassment.49

9. Prohibit retaliation. Schools should also take steps to prevent retaliation against the victim or any others who provided information as witnesses. The students and their families should know how to report subsequent problems and schools should make inquiries to determine whether any retaliation might be occurring.50 10. Follow up. School districts need to reevaluate their policies and practices to ensure that they comply with the law. New Texas law is likely to emerge out of the current legislative session and school districts will have to update their policies to conform with the new laws.

Conclusion According to the Department of Education, peer harassment can result in absenteeism, lower academic achievement, increased anxiety, loss of self-esteem, depression, and suicidal thinking.51 The recent cases of teen suicide have confirmed the devastating effects of this problem. “Bullying fosters a climate of fear and disrespect that can seriously impair the physical and psychological health of its victims and create conditions that negatively affect learning, thereby undermining the ability of students to achieve their full potential.”52 That is why it is imperative that school administrators understand their legal obligations to address harassment and bullying. Those who do are better equipped to prevent it from happening and to respond appropriately when it does.53 Endnotes

1. www.bulliesbegoneblog.com 2. http://www.bloomberg.com/news/2010-10-26/anti-gay-bullyingmay-spark-u-s-financial-penalties-at-schools.html. 3. http://www.youtube.com/user/itgetsbetterproject. 4. High School Youth Risk Behavior Survey, 2009, as reported in the Houston Chronicle, “Lawmakers trying to take on bullying again,” by Ericka Mellon, October 11, 2010. 5. Cyberbulling Research Center, reported in The Classroom Teacher, Vol. 30, No. 4, Winter 2010-11. 6. Tex. Educ. Code § 37.083. 7. Tex. Educ. Code § 25.0342. 8. Tex. Educ. Code § 37.001(b)(1). 9. As defined by Section 46.01(3), Penal Code. 10. As defined by Section 46.01(7), Penal Code. 11. Tex. Educ. Code § 37.001(b)(2). 12. Tex. Educ. Code § 37.001(b-1). 13. OCR Dear Colleague Letter, October 26, 2010 (hereinafter “Dear Colleague Letter”), p. 3. 14. Tex. Family Code § 71.0021(b). 15. See, e.g., Austin Independent School District FFH(EXHIBIT). 16. Tex. Educ. Code § 37.124. 17. Tex. Educ. Code § 37.152(a). 18. Tex. Educ. Code § 37.155.

19. http://www.thenationalcampaign.org/sextech/PDF/SexTech_PressReleaseFIN.pdf. 20. http://www.examiner.com/law-enforcement-in-wichita-falls/texasattorney-general-greg-abbott-proposes-new-sexting-legislation. 21. 42 U.S.C. § 2000d et seq. 22. 20 U.S.C. § 1681, et seq. 23. 29 U.S.C. § 794. 24. 42 U.S.C. § 12131, et seq. 25. Dear Colleague Letter, p.1, citing 34 C.F.R. parts 100, 104, and 106. 26. Dear Colleague Letter, p. 2. 27. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661 (1999). 28. Davis, at 641-42. 29. Id. 30. Id.; OCR Title IX Guidelines, 12041-12042. 31. 551 F.3d 438, cert. denied. 32. 551 F.3d at 449-50. 33. Montgomery v. Independent School Dist. No. 709, 109 F.Supp.2d 1081 (D.Minn. 2000). 34. Fitzgerald v. Barnstable School Committee, 129 S.Ct. 788, 795 (2009). 35. 532 F.3d 445 (6th Cir. 2008). 36. Id. 37. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5 th Cir. 2001). 38. Pearson v. Callahan, 129 S.Ct. 808, 815 (2009). 39. U.S. Const. amend. XIV, § 1. 40. DeShaney v. Winnebago County Dept. Soc. Services, 489 U.S. 189 (1989). 41. Henjy v. Grand Saline ISD, 2010 WL 2521007 (E.D. Tex. 2010), citing, Doe v. Hillsboro ISD, 113 F.3d 1412, 1415 (5th Cir. 1997). 42. Rivera v. Houston ISD, 349 F.3d 244, 249 (5th Cir. 2003); Rios v. City of Del Rio, Tex., 444 F.3d 417, 422 (5th Cir. 2006). 43. See, e.g., Pemberton v. West Feliciana Parish School Board, 2010 WL 431572 (M.D. La. 2010) (court rejects special relationship and state-created danger theories in peer harassment lawsuit). 44. U.S. Const. amend. XIV, § 1. 45. 109 F.Supp.2d at 1096-1097. 46. Dear Colleague Letter, pp. 2-3. 47. Id. at p. 2. 48. Id. 49. Id. at p. 3. 50. Id. 51. Dear Colleague Letter Harassment and Bullying (October 26, 2010) Background, Summary, and Fast Facts. 52. Dear Colleague Letter, p. 1 53. Id.

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

DEAR SNORT:

Snort here. Rip Snort. Intrepid Reporter and Friend of the Truth. Dawg, we know that our schools in Texas are facing difficult financial times. Many of them are contemplating radical solutions such as eliminating bus service and buying every kid a used bike instead. Or dropping 12th grade altogether. Or replacing the custodial staff with kids assigned to DAEP. Most of the districts in our area are contemplating reductions in force—RIFs, as they are commonly known. This is generally not seen as a good thing. In a RIF, employees who have done nothing wrong are let go simply as a cost cutting measure. No one likes RIFs.

We drove by the school ourselves, Snort, and we found the sign you were referring to. We are not investigative reporters, so we did not jump to the worst possible conclusion. Instead, we stopped off at the school and dropped in on the principal of Notsohot….who is sometimes referred to as the Notsohot principal. She was very kind and helpful and informed the Dawg that this is the week to celebrate READING IS FUNDAMENTAL. Thus: RIF.

Or so we thought. Then we drove past Notsohot Elementary School last week and saw a large sign out front that read: HOORAY!! IT’S RIF DAY!!! Your Intrepid Reporter saw a story here. A story of intrigue, conspiracy and betrayal in the very halls of an innocent looking elementary school. Your Intrepid Reporter’s razor sharp investigative reporter’s instincts went on full alert. Who would be in favor of a RIF? Who would post such a sign? It looks like a group project, judging by the size of the sign. It must be a group that believes they already know who is going to get RIFfed. And they are looking forward to it! We have three groups of suspects, Dawg. We will be on the trail this week, and will soon report our findings. Our first group is the core curriculum staff. Perhaps the English and Math teachers have figured out that the ax is likely to fall on those who teach non-TAKS subjects! At last! An opportunity to rid the building of those drama queens in the art department, the American Idol wannabees in music, and the P.E. staff whose buff fitness makes us all feel undisciplined. The second group we suspect is the veteran teachers. They must have examined school policy and determined that this is a matter of seniority. So…let’s get rid of all those teachers in their 20s and early 30s!! No more tattoos! No more baby and wedding showers! Our third suspicion is the darkest of all, Dawg. What if the entire faculty has banded together in the hopes that the RIF will eliminate their principal!? We’re on it, Dawg. Will let you know. SNORT.

So we don’t really think there is a story there, Snort—but you are the Friend of the Truth so we leave that to you. But if this story does not pan out, you might want to turn your attention to how the school got to be named Notsohot. The principal told me that this is a reference to an obscure Indian tribe that once inhabited the area. But I stopped off in the teachers’ lounge and was told that it is actually a reference to the food in the cafeteria. Now there is story, Snort! DEAR DAWG: As CNN has reported, Bangladesh has abolished corporal punishment in public schools. Does Texas wish to follow Bangladesh’s lead? MINISTER OF EDUCATION, PEOPLE’S REPUBLIC OF BANGLADESH. DEAR MINISTER: Thank you for your inquiry, as the Dawg rarely hears from international sources. We shall pass your question on to the powers that be, but if history be any guide, we doubt that our state leaders will want to launch a campaign along the lines of “Let’s Catch Up to Bangladesh!” Texas butts have been paddled in Texas schools since before your country existed, and we don’t expect that to change. Moreover, as you probably know, our state is politically conservative and unlikely to follow the lead of any entity that calls itself “The People’s Republic.” That just sounds vaguely threatening to us. We did notice one thing that our countries seem to have in common. We noticed that this decision was not made by “the People’s” representatives in Bangladesh, but rather by your highest court. It’s the same here. Some of the more controversial and difficult decisions here are made by the courts—not the legislature. Keep an eye on our school finance situation!

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


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LEGAL DEVELOPMENTS GOVERNANCE Public Information Act ARE STATE EMPLOYEE DATES OF BIRTH SUBJECT TO DISCLOSURE UNDER THE TEXAS PUBLIC INFORMATION ACT? Editor’s Note: This case does not involve a school district but is relevant to school districts. It addresses whether the state must release employee dates of birth in response to a request for information under the Texas Public Information Act. The Public Information Act requirements apply equally to requests for information made to school districts. Case citation: Texas Comptroller of Public Accounts v. Attorney General of Texas, __ S.W.3d __, 2010 WL 4910163 (Tex. 2010). Summary: The Dallas Morning News sought a copy of the Texas Comptroller’s payroll database for state employees. The Comptroller responded with the full name, age, race, sex, salary, agency, job description, work address, date of initial employment, pay rate, and work hours for each employee. However, the Comptroller withheld dates of birth, claiming that they were protected from disclosure under the Texas Public Information Act, Tex. Gov’t Code § 552.101, which excepts from disclosure “information considered to be confidential by law, either constitutional, statutory, or by judicial decision.” The Comptroller then sought an opinion from the Attorney General’s Office on whether the dates of birth should be disclosed. The Attorney General considered whether date of birth information was protected under Texas Government Code § 552.101, as well as § 552.102’s personnel file exception. Texas Government Code § 552.102(a) protects “information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The Attorney General ultimately ruled, however, that the information was not protected under the Public Information Act based on the facts presented by the Comptroller. The trial court and appeals court later agreed with the Attorney General ruling. The Comptroller then sought review of those decisions by the Texas Supreme Court. Ruling: The Texas Supreme Court held that the Comptroller properly withheld state employee birth dates. The Court held that, under the unique circumstances presented, the personnelfile exception to disclosure, under § 552.102(a) of the Public Information Act, protected the privacy interest of employees in their birth dates. According to the Court, determining whether the information sought was a “clearly unwarranted invasion of personal privacy” required it to balance the individual’s right to privacy against the public’s right to government information. In this case, the Attorney General and the Comptroller identified significant privacy interests at stake, and the public interest in employee birth dates was “minimal.” The Court

observed that privacy interests protected by the PIA exception involve the right of individuals to determine when, how, and to what extent their personal information is communicated to others. Once the information is disclosed, the information belongs to the general public. Finding that “birth dates implicate substantial privacy interests,” the Court cited the growing problem of identity theft and the ease with which information can be obtained over the internet. The Public Information Act already protects social security numbers, home addresses, and personal family information. According to the Court, “[t]hese protections would be meaningless, however, if birth dates were disclosed, because those dates, when combined with name and place of birth, can reveal social security numbers.” A birth date, taken together with the person’s full name and details of employment, can be used to facilitate identity theft. In examining the public’s interest in the information, the Court stated that personal information about employees that does not shed light on their official actions would not further the purposes of the Public Information Act. In this case, employee birth dates “shed little light on government actions.” Further, the Dallas Morning News produced no evidence to show a significant public interest in the information. The record showed that the Comptroller had already released the full name, age, race, sex, salary, agency, job description, work address, date of initial employment, pay rate, and work hours of every agency employee. The Comptroller also showed that, using only the information produced, each employee was distinguishable without resort to date of birth. Thus, the state employees’ privacy interest substantially outweighed the negligible public interest in disclosure. The Court concluded that disclosing employee birth dates constituted a clearly unwarranted invasion of personal privacy, making them exempt from disclosure under § 552.102(a) of the Texas Public Information Act. Things to Remember: The court was clearly concerned about identity theft, noting in the majority opinion a study indicating that identity theft cost Americans almost $50 billion in 2007. The court also cited technology: “Nor can we ignore the reality of technology.” The two dissenting justices thought these concerns were overstated, noting that “The sky is not falling.” Of course the majority carries the day and thus date of birth is now exempt from public disclosure.

Textbooks THE ATTORNEY GENERAL DISCUSSES SCHOOL TEXTBOOK ADOPTION UNDER THE EDUCATION CODE Case citation: GA-0823 (2010). Summary: The chair of the State Board of Education (SBOE) recently asked the Attorney General several questions related to the adoption of textbooks. Generally, school districts must offer a required curriculum composed of the foundation curriculum and the enrichment curriculum. Education Code §31.101(c-1)


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Governance, continued provides that “[n]otwithstanding any other provision of this chapter, a school district or open-enrollment charter school must purchase a classroom set of textbooks adopted by the State Board of Education under Section 31.035 for each subject and grade level in the foundation and enrichment curriculum.” The SBOE first asked whether: (1) university open-source textbooks are eligible for local selection as a “classroom set”; (2) a district or charter school can satisfy Education Code § 31.101(c-1) by purchasing a classroom set of materials adopted by the board that does not cover the entire state curriculum; and (3) Education Code § 26.006(c) entitles a student to take a textbook home at the request of a parent if the textbook is available, including a textbook that is part of the “classroom set”. The remaining questions related to “university open-source textbooks” which are generally defined as electronic textbooks that a student may obtain from the internet at no charge. The SBOE asked whether the SBOE has authority to: (1) decline to place a university open-source textbook on the conforming or nonconforming list if the university disagreed with the Board as to whether the textbook covered the curriculum or contained factual errors, and (2) penalize a university, as it would any other publisher, for violations of the duties and responsibilities set out in the Education Code. In addition, the SBOE asked whether a district or open-enrollment charter school is entitled to a credit under Education Code § 31.1011 if the school or district selects a university open-source textbook in lieu of another textbook purchased at state expense. Finally, the SBOE asked whether technological equipment purchased under Education Code § 31.1011 is the property of the state or the local school district. Ruling: The Attorney General concluded first, that University open-source textbooks adopted pursuant to Education Code § 31.023 and § 31.035 may serve as a “classroom set” of textbooks under 31.101(c-1). Also, a “classroom set” under § 31.101(c-1) may include textbooks on the nonconforming list that do not cover the entire state curriculum. Education Code § 26.006(c), which requires a school district or charter school to honor a parent’s request to allow the student to take home any textbook used by the student if it is available, applies to a textbook that is part of a classroom set of textbooks. According to the Attorney General, the SBOE has no authority under Education Code § 31.0241 to decline to place an open-source textbook on the conforming or nonconforming textbook list if the SBOE disagrees with an eligible institution’s determination that the textbook qualifies for placement on the conforming or nonconforming list. Assuming that a university is properly characterized as a publisher, with respect to an open-source textbook, the SBOE has authority to impose an administrative penalty on such a university for violations under subchapter D, chapter 31 of the Education Code. If an open-enrollment charter school or school district acquires a university open-source textbook at a cost below the cost limit established under Education Code § 31.025(a), the school or district is entitled to a credit. Further, § 31.102

of the Education Code, which provides that “[e]ach textbook purchased as provided by this chapter is the property of this state,” does not include technological equipment as property of the state.

Insurance CAN A COMMUNITY COLLEGE PURCHASE LIABILITY INSURANCE TO COVER CLAIMS ARISING FROM THE OPERATION OF A CHILDCARE CENTER? Case citation: GA-0830 (2011). Summary: The Commissioner of Higher Education asked the Attorney General whether the Texas Constitution prohibits a community college, in this case the San Jacinto College, from purchasing liability insurance coverage for operating child-care centers. Article III, section 52(a) of the Texas Constitution prohibits political subdivisions from making “gratuitous payments.” The Commissioner expressed concerns that a community college would receive nothing in return for buying liability insurance because a community college generally is immune from liability. According to the Commissioner, that could result in public funds being used for private purposes or gratuitous payments in violation of article III, section 52(a) of the Texas Constitution. Ruling: The Attorney General determined that a community college could purchase liability insurance without violating article III, section 52(a) of the Texas Constitution. Human Resources Code § 42.049 requires licensed child-care centers to maintain liability insurance. While the Texas Constitution prohibits “gratuitous payments,” the Attorney General explained that a payment is not “gratuitous” if the political subdivision receives return consideration. Thus, if a community college receives consideration in return, it may purchase liability insurance under Human Resources Code § 42.049. Further, according to the Attorney General, a community college is not entirely immune from liability. For example, for community colleges, Texas law waives governmental immunity for personal injury and death caused by the negligent use or operation of a motor vehicle or from a condition or use of tangible personal or real property. A community college also might be liable under federal laws that are not protected by state immunity. The Attorney General stated that “[b]ecause under certain circumstances the College could be liable for damages under state or federal law, liability insurance would not be gratuitous.” Further, even if a community college was sued over an injury for which it could not be liable, it could still receive legal representation necessary to advance its immunity in return for maintaining insurance. Thus, a community college could maintain liability insurance under Human Resources Code § 42.049 without violating article III, section 52(a) of the Texas Constitution. Things to Remember: Occasionally school districts face the same argument, but as this opinion makes clear, liability insurance serves a purpose and does not amount to a gift of public funds.


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LABOR AND EMPLOYMENT Due Process DID THE TENURED PROFESSOR HAVE A PROTECTED PROPERTY INTEREST IN HIS DEPARTMENT CHAIR POSITIONS? Case citation: Gentilello v. Rege, __ F.3d __, 2010 WL 4868151 (5th Cir. 2010). Summary: Larry M. Gentilello, M.D. was a tenured professor at the University of Texas Southwestern Medical Center. Until March of 2007, Gentilello also held the positions of Chair of the Division of Burns, Trauma and Critical Care and the Distinguished C. James Carrico, M.D. Chair in Trauma. According to Gentilello, however, his supervisors wrongfully removed him from the chair positions. He claimed that the demotion occurred after Gentilello voiced his concerns about what he considered to be substandard patient care at Parkland Hospital, a hospital served by UT Southwestern Medical Center. Gentilello brought suit under 42 U.S.C. § 1983 against his supervisors, alleging that he was wrongfully demoted without due process of law in violation of the Fourteenth Amendment to the United States Constitution. Specifically, he alleged that his supervisors demoted him in retaliation for speaking out about “improper and illegal” practices at Parkland Hospital. In response, the defendants sought dismissal of the lawsuit asserting the defense of qualified immunity. The trial court granted the defendants’ request for dismissal and Gentilello appealed to the Fifth Circuit Court of Appeals. Ruling: The Fifth Circuit held that Gentilello failed to allege sufficient facts to state a claim for the deprivation of a protected property interest without due process of law. The appeals court observed that a public official performing a discretionary function is entitled to qualified immunity, provided his conduct does not violate “clearly established federal statutory or constitutional rights of which a reasonable person would have known.” In analyzing the qualified immunity defense, courts first decide whether facts alleged by the plaintiff make out a violation of a constitutional right, and whether that right was “clearly established” at the time of the defendant’s alleged misconduct. To state a Fourteenth Amendment due process claim, a plaintiff “must first identify a protected life, liberty or property interest and then prove that governmental action resulted in a deprivation of that interest.” According to the appeals court, a property interest in employment requires a “legitimate claim of entitlement” created and defined by “existing rules or understandings that stem from an independent source such as state law.” In Texas, employment is presumed to be at-will, unless the employment relationship is altered by contract or by express rules or policies limiting the conditions under which an employee may be terminated. Courts have long held that “absent a specific agreement to the contrary, employment may

be terminated by the employer or the employee at will, for good cause, bad cause, or no cause at all.” In this case, Gentilello, as a tenured professor, had a protected property interest in his employment with UT Southwestern Medical Center. However, the appeals court held that “the due process clause does not protect Gentilello’s specific job duties or responsibilities absent a statute, rule, or express agreement reflecting an understanding that he had a unique property interest in those duties or responsibilities.” Nowhere in his pleadings did Gentilello allege a property interest in his chair positions. He failed to point to any ordinance, official policy, state or local law, contract or other enforceable agreement to support his claim of entitlement to the chair positions. Because Gentilello could not demonstrate a property interest in the department chair positions, the appeals court concluded that the trial court properly dismissed the lawsuit. Things to Remember: This case does not break new ground, but it does illustrate how courts interpret the Due Process provisions in the Constitution. “Due Process” is a term often used to connote basic fairness, but as this case shows, the term actually applies to a legal standard that only comes into play when “life, liberty, or property” is taken away by governmental action. Here, the plaintiff was not deprived of life, liberty or property—and thus was not entitled to “Due Process.”

DO EMPLOYEES HAVE PROPERTY INTERESTS IN PROBATIONARY CONTRACTS BEYOND THE CONTRACT TERM? Case citation: Ray v. Houston ISD, 2010 WL 5100837 (S.D. Tex. 2010) (unpublished). Summary: Aletha B. Ray was an elementary school teacher for the Houston Independent School District when the district proposed to terminate her one-year probationary contract at the end of the contract’s term. The superintendent gave Ray notice of the board’s action by letter dated March 23, 2009, which she received the next day. Her last day of employment with the district was May 29, 2009. On December 31, 2009, Ray filed suit alleging retaliation, Whistleblower Act violations, and violations of the Texas Constitution. The trial court dismissed Ray’s Whistleblower claims. [See, Ray v. Houston ISD, 2010 WL 2545577 (S.D. Tex. 2010); Texas School Administrators’ Legal Digest, September 2010]. The district then sought dismissal of the sole remaining cause of action for alleged procedural due process violations. She claimed that the district violated her due process rights under the Fourteenth Amendment to the United States Constitution when it declined to renew her oneyear probationary contract. Ruling: The trial court dismissed Ray’s procedural due process claims against the school district. According to the trial court, “[n]umerous federal courts applying Texas law have held as a matter of law that teachers working under a probationary contract do not have a property interest in employment beyond the term of that contract.” The record showed that Ray was


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Labor and Employment, continued not terminated during the contract period which, under certain circumstances, might give rise to a due process claim. Instead, the district simply declined to renew Ray’s contract after the one-year period. The trial court determined that Ray had no property interest in continued employment after her probationary contract expired. Thus, the district did not violate Ray’s Fourteenth Amendment procedural due process rights. The trial court entered judgment in favor of the district. Things to Remember: This case makes the same point as the 5th Circuit decision in the Gentilello case.

Compensation DID THE SCHOOL DISTRICT BREACH THE TEACHER’S CONTRACT WHEN IT REQUIRED AN ADDITIONAL DAY OF WORK? Case citation: North East ISD v. Kelley, 2010 WL 5019850 (Tex. App. – Austin 2010) (unpublished). Summary: John Kelley worked as a teacher for the North East Independent School District and held a one-year probationary contract. The contract provided that Kelley would be employed on a 10-month basis for the 2000-01 school year “according to the hours and dates set by the district as they exist or may hereafter be amended.” The district’s teacher work schedule, which was posted on the district’s website, required 187 days of work and the teacher salary schedule was based on the 187-day work schedule. Kelley filed a grievance against the district when it required him to work at a graduation ceremony, beyond the required 187-day work schedule. He claimed that the district breached his contract and requested compensation for the additional day of work. After his grievance was denied, he appealed to the Commissioner of Education. However, the Commissioner dismissed Kelley’s appeal for lack of jurisdiction. Kelley filed an administrative appeal of the Commissioner’s decision. The trial court reversed the Commissioner’s ruling, concluding that the district had breached Kelley’s contract. The district appealed, arguing that both the Commissioner and the trial court did not properly apply the substantial evidence standard of review in determining whether the district breached Kelley’s contract. According to the district, the board’s interpretation of the contract is entitled to a presumption of validity because substantial evidence existed to support the board’s interpretation. The district claimed further that Kelley’s contract was amended by a memorandum from an associate superintendent requiring all faculty to work the graduation. According to the district, such an amendment was authorized by the provision in Kelley’s contract that gave the district the right to assign and reassign duties at any time during the contract term. Ruling: The court of appeals upheld the trial court ruling that the district violated Kelley’s contract when it required him to work one day beyond the 187-day work schedule. The appeals court agreed with the trial court that the contract,

combined with the published work schedule, unambiguously required Kelley to work for 187 days. The contract provided for a 10-month term, “according to the hours and dates set by the district as they exist or may hereafter be amended.” The district also published the work and salary schedules, which provided the starting and ending dates, number of working days, and salary terms of the contract. Furthermore, the associate superintendent’s memorandum requiring teachers to work at graduation did not amend the contract. A district’s right to assign or reassign work does not allow a district to unilaterally amend a contract term. Rather, if a district amends a “position, duties, or responsibilities, it must do so during the contract term and in accordance with its provisions.” According to the appeals court, the district breached Kelley’s contract by requiring him to work beyond its fixed 187-day term. Thus, the Commissioner had jurisdiction over the contract dispute. The appeals court sent the case back to the Commissioner to determine the damages owed to Kelley resulting from the breach of his employment contract. Things to Remember: This is the latest ruling in a long, drawn-out battle. Obviously, both sides feel that there is more at stake than the payment for the one day of work, and they are right. This case is worth studying as districts review and revise the standard contracts offered to teachers and administrators.

Discrimination/Retaliation COULD THE INSTRUCTOR MAINTAIN CLAIMS FOR DISCRIMINATION AND RETALIATION? Case citation: El Paso Community College v. Lawler, __ S.W.3d __, 2010 WL 4851390 (Tex. App. – El Paso 2010). Summary: Antonio Lawler, who is Hispanic, worked at the El Paso Community College District (EPCC) as a welding instructor. Lawler filed suit against the EPCC claiming national origin and age discrimination and retaliation. According to his lawsuit, the EPCC allowed a non-Hispanic employee to teach “credit” welding courses, while he taught non-credit welding courses. After Lawler complained of the problem, the EPCC determined that neither of the instructors were qualified to teach the credit courses. The EPCC recommended Lawler for an exception to the credential requirements, but the Faculty Credentials Review Committee (FCRC) denied the application. However, after Lawler filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), the EPCC allowed Lawler to teach credit courses, beginning in January of 2005. In September of 2005, Lawler was provided with a new syllabus for the credit welding course. However, he chose not use the new syllabus because he believed that it did not include everything that the students needed to learn. One of Lawler’s supervisors allegedly ordered him to use the syllabus. Lawler instead resigned because he felt that using the syllabus rendered his employment conditions intolerable.


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Labor and Employment, continued EPCC filed a plea to the jurisdiction seeking dismissal of Lawler’s lawsuit. EPCC argued that it was entitled to sovereign immunity and, as a result, the trial court lacked jurisdiction over the dispute. According to EPCC, because Lawler failed to state a prima facie case of discrimination, its sovereign immunity had not been waived. The trial court denied EPCC’s motion and the community college appealed. Ruling: The appeals court upheld the trial court’s decision to deny EPCC’s plea to the jurisdiction. A plea to the jurisdiction challenges a trial court’s jurisdiction over a lawsuit. Sovereign immunity deprives a trial court of subject matter jurisdiction over lawsuits in which the state or certain governmental units have been sued unless the state consents to suit. The Texas Commission on Human Rights Act (TCHRA) provides a limited waiver of sovereign immunity when a governmental unit has committed employment discrimination on the basis of race, color, disability, religion, sex, national origin, or age. To overcome EPCC’s plea to the jurisdiction, Lawler had to allege facts that affirmatively demonstrated that the trial court had jurisdiction. The parties submitted evidence in support of their contentions in this case. Under these circumstances, the trial court reviews the evidence to determine if fact issues exist. If so, the trial court could not grant the plea to the jurisdiction. In this case, the appeals court determined first that fact issues existed on whether Lawler was qualified to teach the credit welding course when he was first denied that position in May of 2004. Lawler offered evidence that he had a Texas Teachers Certificate and he had provided it to EPCC in 2003 and 2004. In addition, evidence showed that the EPCC accepted a teaching certificate from the non-Hispanic instructor to establish his credentials for teaching the credit welding class. Because fact issues existed on whether Lawler was qualified to teach the credit welding class, the appeals court upheld the denial of EPCC’s plea to the jurisdiction on Lawler’s national origin discrimination claim. The appeals court also concluded that fact issues existed on whether EPCC constructively discharged Lawler when it required him to use a syllabus that Lawler claimed did not allow him to teach the students what they needed to learn. A constructive discharge occurs when an employer makes conditions so intolerable that an employee reasonably feels compelled to resign. Looking to the evidence submitted by the parties, the appeals court determined that conflicting evidence existed on whether the order to require Lawler to use the syllabus with which Lawler disagreed would create the type of intolerable conditions that would cause him to reasonably feel compelled to resign. Thus, the trial court did not err when it denied EPCC’s plea to the jurisdiction with respect to Lawler’s age discrimination and retaliation claims.

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Whistleblower ARE UIL RULES “LAWS” UNDER THE TEXAS WHISTLEBLOWER ACT? Case citation: Galveston ISD v. Jaco, __ S.W.3d __, 2010 WL 80564 (Tex. App. – Hous.[14th Dist] 2011). Summary: Brent Jaco sued the Galveston Independent School District under the Texas Whistleblower Act alleging that he was demoted and constructively discharged from his position as Director of Athletics and Extracurricular Activities for reporting to the University Interscholastic League (UIL) officials a Ball High School football player’s violations of the UIL parent-residency eligibility rules. The school district sought dismissal of the case, arguing that Jaco failed to make a good faith report of a violation of law to an appropriate law enforcement authority, as required by the Texas Whistleblower Act. As a result, according to the school district, the courts did not have jurisdiction over the suit. The matter ended up at the Texas Supreme Court, which held that the school district could challenge the trial court’s jurisdiction if Jaco failed to meet all of the elements of a Whistleblower claim. The Supreme Court returned the case to the appeals court to determine whether Jaco’s claims fell within the protections of the Whistleblower Act. [See, Galveston ISD v. Jaco, 303 S.W.3d 699 (Tex. 2010); Texas School Administrators’ Legal Digest, April 2010]. Ruling: The court of appeals dismissed the Whistleblower lawsuit stemming from reports of alleged UIL violations. The main issue here was whether the UIL rules are “laws” within the meaning of the Whistleblower Act. The Act defines a “law” as a state or federal statute, a local ordinance, or a “rule adopted under a statute or ordinance.” The parties disputed whether the UIL parent-residency rule “is a rule adopted under a statute or ordinance.” While the legislature has required the UIL to adopt some rules, there was no indication that the legislature required the UIL to adopt a parent-residency rule. The UIL rules are not “adopted” by a legislative body or even by the Commissioner of Education. Instead, the UIL submits its rules and procedures to the Commissioner for approval or disapproval. This distinction weighed in favor of the district’s position that the UIL rules were not “laws” under the Whistleblower Act. The appeals court held further that “treating all of the UIL’s rules as ‘law’ would produce absurd results” in that even minor UIL infractions, such as scheduling of track events, would amount to violations of law. According to the appeals court, the legislature did not intend the phrase “violation of law” to be read so expansively. Thus, the violation of the parent-residency rule was not a “violation of law” for the purposes of the Whistleblower Act. The court did not have jurisdiction over the suit and judgment was rendered in favor of the district.


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Labor and Employment, continued Nonrenewal DID SUBSTANTIAL EVIDENCE EXIST TO SUPPORT THE COUNSELOR’S NONRENEWAL? Case citation: Duncan v. Fort Worth ISD, Dkt. No. 070R1-0710 (Comm’r Educ. August 25, 2010). Summary: Toffie Duncan served as an elementary school counselor and Section 504 campus coordinator for the Fort Worth Independent School District, when the district proposed to nonrenew her contract. The reasons provided in Duncan’s nonrenewal notice included, among others, the failure to fulfill duties and responsibilities; failure to comply with official directives; and the failure to maintain effective working relationships with parents, the community, or colleagues. Following a hearing before a certified hearing examiner, the hearing examiner recommended Duncan’s nonrenewal. The board accepted that recommendation and voted to nonrenew Duncan’s term contract. Duncan appealed the board’s decision to the Commissioner of Education, arguing that substantial evidence did not exist to support the board’s decision. Ruling: The Commissioner denied Duncan’s appeal. The Commissioner observed that a school district may nonrenew a teacher’s contract for the reasons it establishes in its employment policies. Nonrenewal does not require a showing of good cause. Further, in order to support a nonrenewal, it is sufficient that only one of the reasons for proposed nonrenewal must be found to be supported by substantial evidence. In this case, the Commissioner determined that the board’s decision to nonrenew Duncan’s contract was based on welldocumented evidence of her failure to fulfill her duties and responsibilities as counselor and Section 504 coordinator. Evidence showed the woman’s inefficiency in performing her duties, her failure to comply with official directives, and failure to maintain an effective working relationship with the parents of a child with a disability. Specifically, the record showed that Duncan failed to comply with official directives from her supervisor by not scheduling a second 504 meeting to amend inaccurate information in the 504 accommodation plan of a student. Further, she unilaterally altered the 504 accommodation plan of the same student despite having been directed that modifications to the document could not be made except in a meeting attended by a committee comprised of specific school staff and the parents of the student. Duncan also failed to maintain an effective working relationship with the parents of a child with a disability by refusing to follow the student’s psychological plan and by calling the parents and stating her personal belief that the plan was not appropriate. Duncan claimed that her nonrenewal was based on a fraudulent report by the district investigator in the matter, but Duncan failed to produce evidence supporting the fraud allegations. Duncan alleged that the school board violated Education Code § 21.203 by failing to review her most recent evaluation

prior to the nonrenewal decision. Contrary to those allegations, the evidence showed that the board reviewed Duncan’s 200708 evaluation which indicated that the woman had continuing deficiencies in the areas of maintaining student confidentiality and in maintaining positive working relationships with students, parents, and staff. There was no evidence of a more recent evaluation. Thus, Duncan failed to prove that the district did not review her most recent evaluation. The Commissioner upheld Duncan’s nonrenewal. Things to Remember: Earlier versions of the Term Contract Nonrenewal Act required school boards to review the evaluation from the year of the nonrenewal, which often presented practical timing problems. Currenty, however, the law requires a review of the “most recent evaluation” and then only if the evaluation is relevant to the decision to nonrenew. Here, the district complied with this requirement and otherwise followed correct timelines and procedures.

DID THE SCHOOL DISTRICT PROPERLY NONRENEW THE TEACHERS AS PART OF A REDUCTION IN FORCE? Case citation: McMillan v. La Marque ISD, Dkt. No. 005-R1-0910 (Comm’r Educ. October 21, 2010) and Jackson v. La Marque ISD, Dkt. No. 003-R1-0910 (Comm’r Educ. October 21, 2010). Summary: Harrilyn McMillan and Stacy Jackson were teachers for the La Marque Independent School District when the district underwent a reduction in force (RIF). The RIF was intended to target the secondary Disciplinary Alternative Education Program (DAEP), where McMillan and Jackson worked. In March of 2010, the district’s board of trustees considered action on the employment contracts of those employment areas subject to the RIF. The minutes of the board meeting indicated that a motion was made “to accept the recommendation of the superintendent” concerning those contracts and the motion carried. It was unclear, however, from the minutes what the superintendent’s recommendation was, but a separate document indicated several DAEP positions identified as positions subject to the RIF. Following the board meeting, the district sent McMillan and Jackson letters indicating that the board had approved a program change based on Board Policy DFF(Local), the district’s RIF policy, and that their positions had been eliminated. The record demonstrated that the board of trustees did not vote to propose the nonrenewal of McMillan or Jackson’s term contracts. McMillan and Jackson separately appealed the board’s actions to the Commissioner of Education, arguing that the district improperly nonrenewed their term contracts as part of the reduction in force because it did not propose the nonrenewal of their contracts and did not provide notice of proposed nonrenewal 45 days before the last day of instruction. The teachers claimed further that the board predetermined the outcome of the nonrenewal hearing and failed to follow its RIF policies.


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Labor and Employment, continued Ruling: The Commissioner granted the teachers’ appeals. McMillan and Jackson argued that the district failed to comply with the requirements of Chapter 21 of the Education Code in its attempts to nonrenew their term contracts because the board did not take action to approve a motion to propose the nonrenewal of the contracts. Under Education Code § 21.206, “[n]ot later than the 45th day before the last day of instruction in a school year, the board of trustees shall notify in writing each teacher whose contract is about to expire whether the board proposes to renew or not renew the contract.” The first action a board should take concerning nonrenewal is to propose nonrenewal. In this case, there was no board vote to propose the nonrenewal of the teachers’ contracts. Instead, McMillan and Jackson were provided notice that their positions had been eliminated, but they were never provided notice that the board had acted to propose the nonrenewal of their term contracts. The board’s failure to do so violated Education Code § 21.206. As a result, the district was required to employ McMillan and Jackson in the same professional capacities for the 2010-11 school year, and provide any back pay and benefits from the time of their discharge.

Termination DID THE SCHOOL DISTRICT PROPERLY TERMINATE THE TEACHER’S TERM CONTRACT? Case citation: Brown v. Sealy ISD, Dkt. No. 071-R2-0710 (Comm’r Educ. August 25, 2010). Summary: Roshonda Renae Brown worked as a teacher and coach for the Sealy Independent School District when the district proposed to terminate her term contract. A hearing was held before a certified hearing examiner. The hearing examiner determined that Brown had engaged in two instances of petty theft that constituted good cause for termination. The board adopted the recommendation and voted to terminate Brown’s contract. Brown appealed the board’s decision to the Commissioner of Education. She claimed that the board’s decision was invalid because of certain procedural irregularities during the hearing before the board and that the board violated Chapter 21 of the Labor Code, Title VII of the Civil Rights Act of 1964, the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, and the Texas Whistleblower Act. She claimed that two board members should have recused themselves from the board vote and that if they had recused themselves, there would not have been a quorum. Ruling: The Commissioner upheld the district’s termination of Brown’s term contract. The Commissioner did not have jurisdiction to hear claims under Chapter 21 of the Labor Code, Title VII, the United States Constitution, or the Texas Whistleblower Act. The Commissioner also did not have the authority to award Brown some of the relief she requested,

such as attorney’s fees and mental anguish damages. The Commissioner also concluded that Brown failed to exhaust administrative remedies with respect to some of her claims because she did not properly brief those claims before the Commissioner. The briefing rules require a statement of facts with appropriate citations to the record. Brown, however, failed to either directly challenge any of the hearing examiner’s findings of fact or cite to the record. The Commissioner stated that it was not his “job to make a party’s case for them by combing through the record to find citations that might show a lack of substantial evidence or an undisputed fact.” Because Brown failed to properly brief her substantial evidence claims, the Commissioner determined that she waived those claims. Brown also claimed that the hearing examiner used the wrong standard for determining good cause. However, she failed to raise that issue at the local level. The Commissioner simply cannot decide issues that were not raised in the local record. The Commissioner did not have jurisdiction over Brown’s assertions that the hearing examiner used the wrong standard for good cause. The Commissioner also rejected Brown’s arguments concerning procedural irregularities at the board meeting. The Commissioner observed that a procedural irregularity can only be the basis for reversing a board’s decision if the irregularity was “likely to lead to an erroneous decision of the board.” Brown argued that two board members should have recused themselves. However, with respect to one of those board members, she never requested the woman’s recusal at the board hearing. Thus, she waived that argument. The record showed that Brown’s attorney requested recusal of one male board member. However, the request for recusal was not sufficiently specific and was not supported by evidence showing bias against Brown. Brown claimed that if the two board members had been recused, the board would not have had a quorum for the meeting and, thus, the board vote on her termination was improper. The Commissioner disagreed, stating that a quorum refers to the number of board members present, not the number actually voting on a matter. The record showed that even if the two board members had recused themselves, the vote would have been 2-1, rather than 4-1. The majority voted for her termination. Further, there was a quorum present when the board voted to terminate Brown’s contract. Brown failed to demonstrate any procedural irregularity “likely to lead to an erroneous decision by the board.” The Commissioner upheld Brown’s termination. Things to Remember: This is one of a number of cases that illustrate how difficult it is to overcome the recommendation of the independent hearing examiner. In this case, the hearing examiner found in favor of the teacher on many issues, but also concluded that the district had shown good cause to terminate the contract.


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LIABILITY Charter Schools ARE CHARTER SCHOOLS SUBJECT TO SUIT UNDER THE TEXAS WHISTLEBLOWER ACT? Case citation: Ohnesorge v. Winfree Academy Charter School, __ S.W.3d __, 2010 WL 4612455 (Tex. App. – Dallas 2010). Summary: Kurt Ohnesorge sued the Winfree Academy Charter School alleging violations of the Texas Whistleblower Act. The Whistleblower Act prohibits a state or local governmental entity from taking adverse personnel action against a public employee who reports in good faith a violation of law by the employing governmental entity, or another public employee, to an appropriate law enforcement authority. The trial court dismissed Ohnesorge’s suit, holding that jurisdiction did not exist over Whistleblower Act claims against the charter school. Ohnesorge appealed the trial court decision, arguing that the charter school could be subject to claims under the Whistleblower Act. Ruling: Charter schools are not subject to suit under the Texas Whistleblower Act. The Whistleblower Act applies to state and “local governmental entities.” The main issue here was whether a charter school is a “local governmental entity.” The Whistleblower Act defines “local governmental entity” as (1) a county, (2) municipality, (3) public school district, or (4) special-purpose district or authority. The appeals court determined that the charter school was not a public school district, despite the fact that the Winfree Academy Charter School referred to itself as a school district on its own website. According to the appeals court, the Texas Constitution and relevant statutes make clear that a public school district is a defined geographic region with a board of trustees overseeing the management of the public schools in that region. An open-enrollment charter school is a school, not a district. The charter school also was not a “political subdivision” of the state. It had no jurisdiction outside its own campus, the members of its governing body were selected according to the methods set out in the charter, and it did not have the authority to assess or collect taxes. Thus, according to the appeals court, the charter school was not a “political subdivision” of the state. Ohnesorge failed to demonstrate that an openenrollment charter school was a “local governmental entity” subject to suit under the Texas Whistleblower Act. Things to Remember: Courts continue to grapple with issues over what laws apply to charter schools. Keep in mind that charter schools, as creatures of the state, can be exempted from the application of state laws—such as the Texas Whistleblower Act—but not from federal laws.

PRACTICE AND PROCEDURE Jurisdiction DID THE SCHOOL DISTRICT EMPLOYEE MEET ALL OF THE STATUTORY PREREQUISITES FOR FILING SUIT UNDER THE TEXAS WHISTLEBLOWER ACT? Case citation: Hitchcock ISD v. Walker, __ S.W.3d __, 2010 WL 5117912 (Tex. App. – Houston [1st Dist.] 2010). Summary: Doreatha Walker worked for the Hitchcock Independent School District as the director of the district’s Head Start program. In 2008, she began complaining of mold growth in the Head Start building and experienced health problems attributed to mold in February and March of 2009. The parent of a student in the Head Start program filed a complaint concerning the mold with the Galveston County Health District. Walker spoke to the investigator assigned to the case and indicated that she had gone to the doctor because of respiratory problems. Walker also exchanged numerous emails with the district’s superintendent complaining about poor air quality and retaliation for having spoken with county health officials concerning the mold. Walker was suspended on May 1, 2009. Two days later, she filed a complaint with the Texas Education Agency claiming that the district made fraudulent reimbursement requests to the state. Two weeks later, the superintendent accused Walker of insubordination and incompetency before the board and did not recommend action on Walker’s employment contract. Walker then filed a grievance claiming retaliation for her TEA complaint. The complaint was titled “Whistle Blower Complaint-Violation of Law.” On the complaint form, Walker described a conversation she had with the district’s business manager regarding alleged fraudulent reimbursements and, in the margin of her statement, she wrote “And mold.” Walker later filed suit against the school district claiming violations of the Texas Whistleblower Act. In her lawsuit, she claimed that the district took adverse personnel action against her for reporting fraud. Six days after filing suit, the district terminated Walker’s employment. Walker amended her lawsuit, adding a claim that the district also retaliated against her for reporting mold to county and state health officials. In response, the district filed a plea to the jurisdiction (i.e., a challenge to the trial court’s jurisdiction). The district argued that the court lacked jurisdiction over the Whistleblower suit because Walker had not met all of the Whistleblower Act’s statutory prerequisites for filing suit related to the reports of mold, and had not filed her suit timely. The trial court denied the plea to the jurisdiction and the school district appealed. Ruling: The appeals court determined that Walker had met the statutory prerequisites for filing her Whistleblower claims stemming from the mold allegations and that a plea to the jurisdiction was not the proper method to challenge the timeliness of the lawsuit. The Texas Whistleblower Act requires a claimant to “initiate” action under the employer’s grievance or appeal procedures before filing suit. The failure to do so will deprive the trial court of jurisdiction over the


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Practice and Procedure, continued claims. The Whistleblower Act does not require that the grievance or appeal procedures be completely exhausted. The grievance must be initiated, however, to provide the employer an opportunity to resolve the matter. The Whistleblower Act does not require the employee to use particular words, nor does it require a specific statement that the claim is brought under the Whistleblower Act. The appeals court stated that “[w]hat is required is that the employer be given reasonable notice, that is, fair notice ‘of the employee’s intent to appeal a disciplinary decision and notice of which decision . . . the employee intends to appeal.’” Here, the issue was whether Walker’s grievance provided the district with reasonable notice of her Whistleblower Act claim related to her reports of mold. Walker filed a grievance complaining of adverse personnel action that was taken after she made reports to the TEA concerning alleged fraudulent reimbursements. She did not specifically state in her grievance that the district had retaliated against her for reporting mold. Walker included in the margin of the grievance statement the words “And mold.” According to the appeals court, the words “And mold,” in light of all of the emails and letters Walker wrote to the superintendent and the board members, as well as her other statements concerning retaliation for reporting mold throughout the grievance process were sufficient to put the district on notice of her mold Whistleblower claim. Thus, Walker satisfied the Whistleblower Act’s procedural prerequisites for filing suit based on her reports of mold. The appeals court also denied the district’s appeal concerning whether Walker filed suit timely. While the statute of limitations provisions of the Whistleblower Act are mandatory, they do not affect a trial court’s jurisdiction. Thus, a plea to the jurisdiction was not the proper procedural method to challenge the timeliness of the suit. The trial court properly denied the school district’s plea to the jurisdiction challenging Walker’s Whistleblower claims.

COULD THE PARENTS APPEAL A DUE PROCESS HEARING OFFICER’S EVIDENTIARY RULING PRIOR TO THE DUE PROCESS HEARING? Case citation: M.L. v. Frisco ISD, 2010 WL 3430788 and 2010 WL 3430696 (E.D. Tex. 2010)(unpublished). Summary: M.L. attended school in the Frisco Independent School District when the parents requested a due process hearing claiming violations of the Individuals with Disabilities Education Act (IDEA). Prior to the due process hearing, a dispute arose over whether some of the claims and evidence would be excluded from the proceedings because they fell outside of the IDEA’s one-year statute of limitations. The hearing officer ruled in favor of the district on the matter, deciding to enforce the statute of limitations. The hearing officer, nevertheless, left open the issue pending the due process hearing, thus, allowing the parents to present further argument and evidence on the matter leading up to the hearing. Prior to the due process hearing, the parents filed suite in

federal court appealing the hearing officer’s ruling to enforce the statute of limitations. The parents argued that the hearing officer’s ruling deprived them of a full and fair hearing. The district sought dismissal of the appeal, arguing that the parents had not yet exhausted administrative remedies. Ruling: The trial court determined that it lacked jurisdiction over the appeal because the matter was not ripe for review. It was undisputed that, at the time the parents appealed the hearing officer’s ruling, no due process hearing had been held. The trial court observed that generally a complaint brought before a federal district court based on the IDEA is not ripe for review until the plaintiffs have exhausted their administrative remedies. While a due process hearing generally is required before an appeal can be taken, “parents may by-pass the administrative process where exhaustion would be futile or inadequate.” Thus, it was up to the parents to prove futility and inadequacy. Here, the parents simply failed to satisfy the IDEA’s exhaustion requirements and could not demonstrate that completing the due process proceedings would be futile or inadequate. The parents failed to show that the hearing officer handled the matter inappropriately or denied them a fair opportunity to be heard on their statute of limitations argument. In fact, the hearing officer left the matter open for further review leading up to the due process hearing. According to the trial court, the parents’ claims here were “simply not ripe for review.” The trial court dismissed the appeal. Things to Remember: Decisions of the hearing officer in a special education case can be appealed to the federal courts after the hearing is completed. Thus, the hearing officer’s ruling on the statute of limitations may be challenged later, but as this decision illustrates, the parties must complete the process before the hearing officer before going to court.

SPECIAL EDUCATION AND DISABILITY LAW Attorney’s Fees CAN ATTORNEY’S FEES UNDER THE IDEA BE AWARDED TO A CHILD WHO HAS NOT YET BEEN DETERMINED ELIGIBLE FOR SPECIAL EDUCATION? Case citation: T.B. v. Bryan ISD, __ F.3d __, 2010 WL 5142376 (5th Cir. 2010). Summary: T.B. was a student at the Bryan Independent School District and had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). The district conducted a full and individual evaluation (FIE) of T.B., but determined that the student did not qualify for special education services. Instead, the district provided him with accommodations under § 504 of the Rehabilitation Act of 1973.


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Special Education and Disability Law, continued Due to T.B.’s behavior, he was placed in the district’s “Special Opportunity School.” T.B.’s mother requested a due process hearing challenging the student’s placement and complaining that the district denied the student a free appropriate public education (FAPE), failed to adequately assess the student, and failed to identify him as eligible for special education, among other things. The hearing officer declined to rule on whether T.B. qualified for special education services, but ordered the district to conduct an FIE and convene an Admission, Review, and Dismissal (ARD) Committee meeting to address the FIE. T.B. sought review of the hearing officer’s decision in federal district court. While the court determined that the hearing officer properly refrained from deciding T.B.’s eligibility for special education, the court ruled that T.B. was entitled to attorney’s fees as a “prevailing party.” Specifically, the trial court determined that T.B. prevailed on the issues of whether the district failed to (1) properly refer T.B. for assessments, and (2) identify T.B. as a student with a disability. The district appealed the trial court’s decision on attorney’s fees. According to the district, the student is not entitled to attorney’s fees because T.B. (1) has never been determined to be a “child with a disability” and (2) T.B. was not the “prevailing party” under the IDEA. Ruling: The Fifth Circuit determined that T.B. was not entitled to attorney’s fees. Under the IDEA, attorney’s fees may be awarded to “a prevailing party who is the parent of a child with a disability.” The IDEA defines “child with a disability” as a child with one of an enumerated list of conditions “who, by reason thereof, needs special education and related services.” In a matter of first impression, the Fifth Circuit determined that, based on the plain language of the statute, attorney’s fees are only available in IDEA proceedings to a parent of a child who has been determined to be a “child with a disability” eligible for special education and related services. The 5th Circuit recognized that IDEA does provide some protections to children not yet determined eligible for special education, such as its protections in disciplinary proceedings found in 20 U.S.C. § 1415(k)(5). The appeals court stated, “But just because Congress has specifically extended some protections to children not yet determined to meet the definition of ‘child with a disability’ does not mean that it has extended all protections.” Here, the attorney’s fees provisions make no reference to children not yet determined to be eligible for special education. Because T.B. had not been determined eligible for special education and related services, he was not entitled to attorney’s fees. Things to Remember: This is one of a number of recent 5th Circuit decisions regarding the recovery of attorneys’ fees in IDEA cases. The case illustrates a fundamental rule of statutory construction—that every word in the statute is there for a reason.

Disability Discrimination CAN §1983 BE USED TO ENFORCE VIOLATIONS OF THE IDEA, ADA, OR § 504? WHAT IS REQUIRED TO PROVE VIOLATIONS OF THE ADA AND § 504? Case citation: D.A. v. Houston ISD, __ F.3d __, 2010 WL5302187 (5th Cir. 2010). Summary: D.A. attended school in the Houston Independent School District when his parent requested a special education due process hearing, claiming that the district failed to test him timely for special education. The hearing officer ruled that the district had violated the Individuals with Disabilities Education Act (IDEA), but that the parent’s claims for relief were moot because the child had withdrawn from the district and had been evaluated by his new school district. The parent then sued the district and two school district officials claiming violations of the IDEA, § 504, the Americans with Disabilities Act (ADA), the Age Discrimination Act, the Texas and United States Constitutions, and 42 U.S.C. § 1983. When the trial court dismissed the suit, the parent appealed to the Fifth Circuit Court of Appeals. Ruling: In a published opinion, the Fifth Circuit held that 42 U.S.C. § 1983 does not provide a vehicle for asserting violations of the IDEA, the ADA, or § 504 of the Rehabilitation Act. The appeals court also held that ADA and § 504 claims based on a denial of special education services require a showing of intentional discrimination, with proof of bad faith or gross misjudgment on the part of the district. The Fifth Circuit observed that a student may assert claims under the IDEA, as well as § 504 and the ADA. While the IDEA imposes a duty upon school districts to provide disabled students in need of special education with a free appropriate public education (FAPE), § 504 and the ADA generally prohibit discrimination against disabled persons in federally assisted programs or activities. According to the appeals court, the ADA and § 504 require a showing of intentional discrimination. The court stated specifically that, “facts creating an inference of professional bad faith or gross misjudgment are necessary to substantiate a cause of action for intentional discrimination under § 504 or ADA against a school district predicated on a disagreement over compliance with IDEA.” In this case, the evidence presented by D.A., that the district did not timely evaluate him, demonstrated no more than negligence on the part of the district. “D.A.’s mere disagreement with the correctness of the educational services rendered to him does not state a claim for disability discrimination.” The record showed that the district authorized an evaluation for special education within two months after the student’s Intervention Assistance Team first denied the parent’s request for evaluation. That amounted to “at most misjudgment, but not bad faith.”


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Special Education and Disability Law, continued Because the student failed to present evidence of intentional discrimination, the appeals court upheld the dismissal of the § 504 and ADA claims. The appeals court also upheld the dismissal of the § 1983 claims based on the same allegations. Section 1983 provides a cause of action when a person has been deprived of federal constitutional or statutory rights under color of state law. The appeals court observed, however, that “when a statutory regime already provides for its enforcement, there is a presumption against the availability of the more general remedial measures of § 1983.” The appeals court, therefore, held that § 1983 could not be used as a vehicle to assert violations of the ADA, § 504, and the IDEA. Further, while the student could raise claims for alleged constitutional violations under § 1983, no evidence existed to support the student’s allegations of race discrimination. The appeals court also held that the student’s claims under the Age Discrimination Act were properly dismissed because the student had not exhausted administrative remedies under that statute. Things to Remember: This is a very important decision. There has been considerable litigation around the country over the intersection of IDEA, § 504, the ADA and § 1983. The underlying concern is about what remedies are available to a party who wins. The only remedies available under IDEA are compensatory services, reimbursement for educational costs incurred, and attorneys’ fees. The other statutes provide more remedies, and thus are more attractive to parents and their attorneys. Here, the 5th Circuit issues a ruling that will be binding on all Texas courts, limiting the use of these other statutes in a case that could be brought under IDEA. Keep in mind that suits under § 504 and the ADA will remain available, but the burden of proof is high, requiring evidence of bad faith or gross misjudgment.

WAS THE SCHOOL DISTRICT ENTITLED TO DISMISSAL OF THE EMPLOYEE’S DISABILITY, FMLA, AND RETALIATION CLAIMS? Case citation: Davie v. Northside ISD, 2010 WL 4810826 (W.D. Tex. 2010) (unpublished). Summary: Phillip Davie worked as a G7 Electrician for the Northside Independent School District. In September of 2003, Davie was diagnosed with bi-polar disorder and began treatment for related symptoms. Davie had a number of absences from work during his employment and concerns about his absences were reflected in his employment evaluations. Otherwise, evaluations indicated that he met the expectations of his job. In June of 2007, Davie was absent from work for a dental appointment which required oral surgery. He suffered a reaction to the medications administered by the dentist that required him to extend his leave. In July of 2007, while still on leave and recovering from the reaction to the medications, Davie fell and injured his shoulder. He extended his leave from work as a result. Davie’s doctor determined that the

shoulder injury would interfere with his ability to perform his job functions. On July 26, 2007, Davie requested an extension of his leave under the Family and Medical Leave Act (FMLA). He signed a leave of absence application on August 2, 2007. The district informed him that he needed to submit a specific medical form and he provided that form on August 8th. On September 6, 2007, the district requested a “Fitness-for-Duty Certificate” from Davie’s doctor, which Davie provided on September 12, 2007. The following day, the district terminated Davie’s employment. Davie sued the school district alleging violations of the Americans with Disabilities Act (ADA) and the FMLA. Both parties filed motions requesting judgment in their favor prior to trial. Ruling: The trial court denied both parties’ requests for judgment, concluding that genuine issues of material facts existed on whether the district violated the ADA and FMLA, and subjected Davie to retaliation. Davie first claimed that his termination violated the ADA because it was based on his series of health issues, including his absences related to his bi-polar disorder. It was undisputed that Davie’s bi-polar disorder qualified as a disability under the ADA. However, the school district argued that the decision to terminate Davie was based on his inability to do his job as a result of the shoulder injury he sustained. Both parties relied on the Fitness-for-Duty Certificate provided by Davie’s physician. According to Davie, the certificate showed that he could return to work with some restrictions. The district, on the other hand, concluded that the certificate showed Davie was incapable of performing some essential functions of his job. Thus, the trial court determined that genuine issues of material fact existed on whether (1) Davie was qualified to perform the job duties at the time he was terminated, and (2) the decision to terminate him was based on a legitimate nondiscriminatory reason. The district was not entitled to dismissal of the ADA claims. The trial court next considered the FMLA claim, and observed that the FMLA prohibits both interference with FMLA rights and retaliation against an employee who exercises FMLA rights. Davie claimed that the district violated the FMLA by failing to grant him 12 weeks of FMLA leave, and by refusing to restore him to his prior position. The parties presented conflicting evidence concerning when the 12-week FMLA period began to run. The district claimed that it began to run on June 20, 2007, resulting in an end date of September 11, 2007. However, Davie claimed that district policy provided that July 1st began a new FMLA year. Alternatively, the 12 weeks may have started when Davie applied for leave after his shoulder injury on July 18, 2007. According to the trial court, the conflicting evidence on this issue created genuine issues of material fact on whether the district interfered with Davie’s FMLA rights by terminating his employment before the end of the 12-week FMLA period and by failing to restore him to his position.


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Special Education and Disability Law, continued The trial court, likewise, determined that fact issues existed on whether the district retaliated against Davie for exercising his rights under the FMLA. According to the trial court, evidence presented with respect to the time of the district’s termination decision “is such that a retaliatory motive could be inferred.” The record showed that the district informed Davie of his termination less than one month after approving requests for a leave of absence and FMLA leave. The trial court stated that the “very short time frame creates an inference of retaliation.” The trial court, therefore, denied the district’s dismissal of the FMLA retaliation claims.

hearing officer also determined that the district developed an appropriate IEP for the student which included appropriate educational programming and related services.

FAPE

The hearing officer observed further that “[w]hen a school district offers a variety of educational services to provide a FAPE, and Student accesses only a portion of the educational services offered, but continues to make progress, [the parent] is not entitled to recovery because [the district] has provided FAPE.” In this case, the district’s program was appropriate and the student made progress, despite the fact that the parent refused some of the services offered by the district. The district did not deny the student a FAPE. Thus, the parent was not entitled to reimbursement for private educational services or compensatory educational services.

CAN A PARENT ESTABLISH A DENIAL OF FAPE WHEN THEY REFUSE SERVICES OFFERED BY THE SCHOOL DISTRICT?

DID THE SCHOOL DISTRICT FAIL TO IMPLEMENT ELEMENTS OF THE STUDENT’S INDIVIDUALIZED EDUCATION PLAN?

Case citation: Student v. Corpus Christi ISD, Dkt. No. 012-SE-0909 (Hearing Officer Gwendolyn Hill Webb, March 1, 2010).

Case citation: Student v. Plano ISD, Dkt. No. 067-SE-1109 (Hearing Officer Lynn E. Rubinett, March 4, 2010).

Summary: The student attended school in the Corpus Christi Independent School District and qualified for special education and related services due to specific learning disabilities in the areas of reading comprehension and written expression. The parent enrolled the student in a private program during the summer of 2008, due to concerns that the student’s program at school was inappropriate, and because they believed that the district had not implemented an individualized remedial reading program for the student. The district and the parent entered into a settlement agreement over the dispute, in which the district agreed to provide an individualized, structured, sequential reading program. At first, the district provided the “SRA reading program” in two versions – one in the Language Arts resource classroom and the other on a 45-day trial period in a more intensive setting. The student made educational progress in the 45day trial period. After the trial period, the district continued to implement the reading program in the resource classroom, but not in the more intensive setting. The school district also tried to provide extended school year (ESY) services, but the parent did not allow the student to attend summer school, opting instead for private services. The parent requested a due process hearing complaining that the reading program provided by the district denied the student a FAPE. Ruling: The hearing officer determined that the reading program developed by the district provided the student with a FAPE. According to the hearing officer, the student’s learning disability required an individualized, structured, sequential reading program for the student to receive a FAPE. The student received the necessary reading program at all times relevant to this due process appeal, except when the student’s parent refused services during the summer of 2009. The

Summary: The student attended school in the Plano Independent School District and qualified for special education services as a student with autism and a speech impairment. The student’s individualized education plan (IEP) called for small group instruction in a special education setting, with some inclusion in regular education. Among other accommodations, the student’s IEP specified that the student receive the accommodation of having student’s assignment notebook checked by the student’s special education and regular education teachers. The teachers’ practice was to prompt the student to write the assignment with a verbal reminder and, if necessary, a tap on student’s desk. On occasion, the student resisted writing assignments in the notebook. As a result, the student’s ARD Committee adopted a social skills objective to “write homework assignments in agenda independently.” The student had one year to achieve the objective. Between February and April of 2009, the student’s assignment notebook contained fewer entries. The parents later requested a due process hearing claiming that the student’s teachers did not properly implement the IEP with regard to the assignment notebook and, as a result, denied the student a FAPE. Ruling: The hearing officer held that the district properly implemented the student’s IEP. The parent did not prove that the district failed to implement the portions of the student’s IEP related to the assignment notebook. The record included testimony from the student’s teachers that they regularly followed procedure for prompting the student to write assignments and for checking the notebook. Blank pages in the notebook did not necessarily establish that the student’s teachers failed to check it. The time frame during which the pages had less entries corresponded with a period of less homework. Further, the teachers testified that the student sometimes refused to write


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Special Education and Disability Law, continued assignments as required. The hearing officer concluded that the district properly implemented the accommodation related to the assignment notebook and the student made satisfactory progress toward the goal of writing in the notebook. Further, any failure to implement portions of the student’s IEP was not substantial or significant enough to constitute a denial of FAPE. Although the student failed portions of the TAKS test, the record showed that the student missed passing by one question. Further, the student’s teacher testified that the student made substantial progress and was performing on grade level in Reading. The district did not deny the student a FAPE. Things to Remember: There is a body of case law now on “failure to implement” claims, which the hearing officer cites in the decision. The leading case for Texas educators is Houston ISD v. Bobby R., 200 F.3d 341 (5th Cir. 2000).

THE SCHOOL DISTRICT DID NOT DENY THE STUDENT A FAPE Case citation: Student v. Alamo Heights ISD, Dkt. No. 070-SE-1109 (Hearing Officer Stephen P. Webb, April 12, 2010). Summary: The student attended school in the Alamo Heights Independent School District and qualified for special education services as a student with autism, mental retardation, and a speech impairment. In November of 2009, the parent requested a due process hearing raising numerous complaints, procedural and substantive, concerning the student���s assessments, placement, services, and IEPs. The parents also complained that the district denied parental participation in the ARD process. The parent claimed further about the qualifications of school staff and handling of the student’s educational records. The main issue before the hearing officer was whether the district denied the student a FAPE. At the time of the dispute, the student’s IEP included extended educational programming; daily schedules reflecting minimal unstructured time; in-home and community-based training; positive behavior support; futures planning; parent/ family training and support; suitable staff-to-student ratio; communications interventions; social skills supports; professional educator/staff support training; and teaching strategies based on peer review, research-based practices for students with autism. The parent disagreed with the IEPs developed by the district. Ruling: The hearing officer determined that, based on the record as a whole, the district provided the student a FAPE. First, the record did not support the parent’s allegation that the district failed to include the student in the general education setting as required by the IEP. The student was placed in the

regular education setting to the maximum extent appropriate. The student needed specialized educational techniques and curriculum. Thus, education solely in a general education setting would not have provided the student a FAPE in the least restrictive environment. The parent also complained that the district did not assess the student in all areas of suspected disability. At issue was whether the student had a vision impairment requiring special education services. The hearing officer determined that the district performed a timely assessment of the student and properly determined that the student did not have an eligible vision impairment. The hearing officer rejected the parent’s complaints concerning parental participation in ARD decisions. The parent presented insufficient evidence to support claims that the district predetermined decisions prior to ARD Committee meetings, denied requests to address issues at ARD meetings, created obstacles to raising concerns at ARD meetings, and created confusing paperwork related to the student’s progress on goals and objectives. The ARD Committee’s decision to limit meetings to one hour did not result in the denial of FAPE. The hearing officer observed that “Student’s Parent has too frequently used ARD meetings, meant to address the Student’s IEP, as a forum to be needlessly combative, insulting, and unproductive. . . . [The district’s] attempts to organize, focus, and direct the important issues of Student’s educational program seem to be a warranted step, meant to address the need for productive ARD decision-making.” The hearing officer concluded further that the student’s IEP developed by the district was appropriate. The student’s goals and objectives were tailored to meet the student’s individual needs. Although the goals and objectives were “in need of refinement”, any deficiencies had not prevented the student from making significant educational progress. The student’s behavior did not warrant a formal BIP. Further, although the district inappropriately determined that the student was able to follow the student Code of Conduct, that determination did not result in the denial of a FAPE. According to the hearing officer, the student made educational progress under the district’s program. The parent failed to demonstrate that the district denied the student FAPE. Things to Remember: Many districts are now limiting the length of ARD meetings by bringing the issue up as part of the discussion of “ground rules” at the beginning of the meeting. This case does not support any across-the-board rule that all ARD meetings can be limited to one hour. The ruling must be read in context. The hearing officer concluded that the parent was sometimes “needlessly combative, insulting and unproductive” and the district’s efforts were designed to “organize, focus and direct” the discussion. In that context, the one-hour limitation passed muster.


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Special Education and Disability Law, continued Identification DID THE SCHOOL DISTRICT PROPERLY ASSESS AND IDENTIFY THE STUDENT? Case citation: Student v. Alief ISD, Dkt. No. 131-SE-0210 (Hearing Officer Sharon M. Ramage, April 23, 2010). Summary: The student qualified for special education under the classification of speech impairment and attended school in the Alief Independent School District. In May of 2009, the district conducted a full and individual evaluation (FIE). Following the FIE, the student’s ARD Committee concluded that the student met the eligibility criteria for a student with mental retardation, in addition to a speech impairment. The ARD Committee also developed an IEP that was to be implemented in the life skills classroom, with electives in the general education setting. Although the mother first agreed to the ARD’s decisions, she later informed the ARD Committee that she rejected the mental retardation eligibility determination and the life skills placement. She later requested a due process hearing complaining of the student’s assessments and placement and contending that the district improperly restrained the child. Ruling: The hearing officer rejected each of the parent’s claims. The parent failed to show that the student’s FIE was improper or that the results were unreliable. According to the hearing officer, the uncontroverted evidence showed that the student met eligibility criteria for mental retardation and a speech impairment. The hearing officer also held that the district developed an IEP for the student that was designed to provide the student with meaningful educational benefit. Placement in the life skills classroom was appropriate based on the student’s academic and behavioral needs. Further, the parent failed to offer any evidence of the use of any improper restraint. Therapeutic restraint was authorized by the student’s behavior intervention plan (BIP). The parent failed to prove any violation of the IDEA in the assessment or placement of the student. The hearing officer therefore denied all relief requested by the parent.

Residential Placement WAS THE STUDENT ENTITLED TO A PRIVATE, RESIDENTIAL PLACEMENT AT DISTRICT EXPENSE? Case citation: Student v. Humble ISD, Dkt. No. 302-SE0809 (Hearing Officer Brenda Rudd, February 22, 2010). Summary: The Humble Independent School District student qualified for special education as a student with an emotional disturbance, an “other health impairment”, and a learning disability. The student had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and took medication to

control it. The student was in a regular education classroom with accommodations and supports. He received counseling and in-class support. The student’s ARD Committee agreed to have the student repeat his grade level for the 2008-09 school year. In December of 2008, the student’s ARD Committee noted improvement in behavior and made no changes to the student’s individualized education plan (IEP) or behavior intervention plan (BIP). The parent agreed with the ARD Committee’s decisions at that time but requested a number of assessments, which the district provided. In January of 2009, the student began having behavioral difficulties at home. The student’s counselor evaluated him and the parent adjusted the student’s medications. The parent also requested the student’s placement in the school’s adaptive behavior program. In response, the student’s ARD Committee revised the student’s BIP, added more in-class support, as well as social skills interventions, and peer group counseling. The student continued to have behavioral problems, mostly at home. The student’s ARD Committee met several times to adjust the student’s program, including placement in an applied behavior (AB) class. The parent eventually withdrew the student and placed the student in a residential facility after the student’s psychiatrist made the recommendation to do so. The district disagreed and offered parent and in-home training and increased extended school year (ESY) services. The parent requested a due process hearing seeking reimbursement for the private, residential placement. Ruling: The hearing officer determined that the program offered by the district was appropriate and the student was not entitled to a private, residential placement at district expense. The parent relied heavily on the testimony of the student’s psychiatrist who recommended residential placement. The record showed, however, that at the time he made the recommendation, he had not seen student and had no information about the student’s educational program or progress. Instead, the psychiatrist made the recommendation based on input from the parent who had been struggling with the student’s behaviors at home. The record showed further that, during the fall of 2008, the student was enrolled in the district in a regular education classroom and was making progress. As the student’s behavior escalated, the ARD Committee adjusted the student’s BIP and added accommodations. The hearing officer determined that the program provided by the district offered education in the least restrictive environment. The district carefully designed both academic and functional goals to meet the student’s needs. The student made progress in the district’s program. The hearing officer concluded further that the private, residential placement was not necessary for the student to make educational progress and receive FAPE. In addition, the district provided the parent with all required notices concerning its placement decisions. According to the hearing officer, the district’s educational program was entitled to a presumption of appropriateness and the parent had the burden to prove otherwise. Here, the parent failed to show any violation of the IDEA on the part


25 of the district. The hearing officer denied all relief requested by the parent. Things to Remember: When both sides present expert testimony, the hearing officer will examine the underlying basis for the opinions expressed by the experts. Here, the parent’s expert psychiatrist relied on “input from the Parent who had been struggling with the Student’s behavior at home.” But the psychiatrist had not seen the student in months, and had no information about the educational program or level of progress. The school was able to demonstrate appropriate progress in the school setting.

STUDENT ISSUES Discrimination DID THE LAWSUIT STATE SUFFICIENT FACTS TO SUSTAIN A DISCRIMINATION CLAIM AGAINST THE SCHOOL DISTRICT? Case citation: Russell v. Dallas ISD, 2010 WL 5071695 (N.D. Tex. 2010) (unpublished). Summary: Samuel T. Russell was the father of two sons who were high school students in the Dallas Independent School District. As part of the district’s Early College High School (ECHS) program, the students were enrolled at Cedar Valley College, which was part of the Dallas County Community College system. However, the boys were removed from the ECHS program due to poor attendance and grades. Following the boys’ removal from ECHS, the father filed suit against the school district and the community college district. He complained that the district employed poor teaching methods, inaccurate recordkeeping and failed to properly communicate with parents. He claimed that this resulted in the boys’ poor attendance and grades. The father alleged further that the community college district discriminated against the boys when it refused to re-enroll them. Russell, proceeding without the assistance of legal counsel, brought his claims under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983. The community college district requested dismissal of the case. The trial court dismissed the Title VII claim and held that the facts were insufficient to state a claim against the community college district for constitutional violations under 42 U.S.C. § 1983. The trial court, nevertheless, granted Russell the opportunity to amend the lawsuit with respect to the § 1983 claims. [See, Russell v. Dallas ISD, 2010 WL 4065517 (N.D. Tex. 2010); Texas School Administrators’ Legal Digest, January 2011]. Russell amended his § 1983 lawsuit and the community college district again sought dismissal. Ruling: The trial court concluded that the amended lawsuit did not state sufficient facts and dismissed Russell’s lawsuit against

the community college district. In his amended complaint, Russell alleged that the refusal of admission violated his sons’ rights under the Family Education Rights and Privacy Act (FERPA) and the Ninth Amendment to the United States Constitution. However, according to the trial court, the Ninth Amendment does not confer any specific constitutional rights. Rather, the Ninth Amendment is a “residual clause” used as a rule of construction in interpreting other constitutional rights. No cause of action exists solely for a violation of the Ninth Amendment. Thus, Russell’s Ninth Amendment claim failed. The trial court also dismissed the § 1983 claim based on violations of FERPA. The trial court observed that FERPA’s nondisclosure provisions do not confer an individual cause of action enforceable under § 1983. Russell’s § 1983 claims against the community college also failed because he did not state any facts showing that the alleged constitutional violations were the result of an officially adopted policy or custom. Absent those allegations, Russell’s amended lawsuit failed to establish a claim upon which relief could be granted and, thus, the trial court dismissed the lawsuit.

Injury COULD THE STUDENT STATE CONSTITUTIONAL CLAIMS STEMMING FROM INJURIES SUSTAINED WHILE PARTICIPATING IN SCHOOL SPORTS? Case citation: Robinson v. Owens, 2010 WL 5100745 and 2010 WL 5099596 (S.D. Tex. 2010) (unpublished). Summary: Perry Robinson, Jr. attended school in the Barbers Hill Independent School District when he injured his back while weight training at his middle school. He sued the school district and his coach, Stephen Owens, claiming violations of his equal protection and due process rights under the Fourteenth Amendment. The record showed that Robinson participated in a number of school sports, including track, football, and basketball. In April of 2008, he began to experience problems with his back and was excused by his chiropractor from participating in athletics for one week. However, after the week expired, Robinson continued to experience pain. Robinson’s father attempted to speak with his son’s school coaches about the matter but was unsuccessful. Meanwhile, Robinson attended his weight lifting class and was required to perform deadlifts. He attempted the first deadlift without complaint. Coach Owens then instructed Robinson to add more weight for the next deadlift, a total of 270 pounds. Robinson claimed that he was unable to complete the deadlift and complained to the coach about his back. Coach Owens then allegedly told Robinson to complete the lift so that the class could be released. The student attempted the exercise one more time but was unsuccessful. He told another coach that his back was hurting and that coach instructed Robinson to go to the nurse. Following the incident, the student was


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Student Issues, continued told that he would need back surgery. He played sports for the rest of the school year but underwent back surgery during the summer of 2008. The following school year, he could not play football, but played basketball and ran track until he was sidelined due to an unrelated injury. In his lawsuit, Robinson claimed that the district and Coach Owens violated his substantive due process right to bodily integrity and equal protection right against race discrimination. Robinson sought relief under 42 U.S.C. § 1983 which provides causes of action for violations of federal constitutional or statutory rights under color of state law. The district and Owens requested judgment in their favor prior to trial on each of the student’s claims. Ruling: The trial court dismissed each of the student’s claims stemming from his injuries sustained while participating in sports at school. To hold the school district liable under § 1983, Robinson had to demonstrate the existence of a policy or custom of the school district that caused the constitutional violation. According to the trial court, Robinson had to present evidence of a “persistent, widespread practice of school officials and employees of which the Board of Trustees had actual or constructive notice.” Here, Robinson presented no evidence showing that the district board of trustees had actual or constructive knowledge of a persistent, widespread practice of any substantive due process violations or racial discrimination by school district officials and employees. Thus, the trial court dismissed the due process and equal protection claims against the school district. Coach Owens argued that he was entitled to qualified immunity. To overcome a claim of qualified immunity, Robinson had to show that Owens (1) violated a constitutional right that (2) was clearly established at the time of the alleged misconduct. The trial court observed that a person’s bodily integrity is a liberty interest protected by the Fourteenth Amendment. However, the court could not find any federal case wherein a student successfully brought suit under § 1983 for violations of the right to bodily integrity stemming from a weight lifting or other athletics-related injury. Further, according to the court, the allegations against Coach Owens did not rise to the level of a constitutional deprivation. The record showed that the note excusing Robinson from athletics had expired. Robinson had deadlifted 270 pounds in the past. Further, Coach Owens’s instructions to Robinson to finish the exercise so that class could be released did not rise to the level of a constitutional deprivation. The court held that the evidence was insufficient to support the student’s claim for the violation of his liberty interest in bodily integrity. The trial court also dismissed the student’s claim against Coach Owens for race discrimination under the Equal Protection Clause. To support his claim, Robinson had to show that he received different treatment from that received by similarly situated individuals and that the unequal treatment stemmed from discriminatory intent. In support of his claim, Robinson alleged that Coach Owens would not praise him when he did

something well, although he would praise some of the white students when they performed well. The trial court held, however, that Coach Owens’s failure to praise Robinson did not amount to a constitutional violation without any direct evidence of discrimination. Thus, the equal protection claim was without merit. The trial court entered judgment in favor of the district on each of the student’s claims. Things to Remember: We expect educators will be pleased to see that the “failure to praise” claim was dismissed. It would be difficult for teachers to keep track of how often and how much they offer praise to students. Courts are not likely to engage in such micro-management.

MISCELLANEOUS Search and Seizure DID THE WOMAN HAVE AN EXPECTATION OF PRIVACY IN STORED MESSAGES ON A CELL PHONE THAT SHE HAD GIVEN TO A STUDENT? Case citation: Young v. The State of Texas, __ S.W.3d __, 2010 WL 5072174 (Tex. App. – Dallas, 2010). Summary: Elizabeth Young pleaded guilty to three counts of sexual assault of a child. The trial court deferred adjudicating Young’s guilt and placed her on ten years’ probation for each count. Young appealed, challenging the trial court’s decision to deny a motion to suppress evidence of stored messages on a cell phone that Young had provided to the complaining victim, a 15-year-old student. The record showed that the search of cell phone messages first occurred by one of the victim’s teachers after the teacher confiscated the phone from the student at school. The main issue on appeal was whether Young had standing to challenge the search of the cell phone. A criminal defendant has standing to contest a search and seizure only when that defendant has a legally protected right to the expectation of privacy. To determine whether a defendant has a reasonable expectation of privacy in an item searched by the government, courts ask (1) whether the defendant had a subjective expectation of privacy in the item, and if so, (2) whether the defendant’s expectation of privacy “is one that society recognizes as objectively reasonable or justifiable under the circumstances.” Ruling: The trial court determined that Young did not have standing to challenge the search of the cell phone. According to the trial court, Young did not have a reasonable expectation of privacy in the cell phone. The evidence indicated that the phone had been purchased by Young’s husband and that Young had lent it to the student to use. A teacher confiscated the phone during class, after the teacher observed the student using it during class against school policy. Young later called the teacher and left a message asking if she could pay the teacher for the return of the phone.


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Miscellaneous, continued At the time, the teacher recalled a meeting earlier that year in which the parents expressed concerns that a family friend had been checking the boy out of school without their knowledge. After the teacher confiscated the phone, she confirmed that it was Young who previously had been checking the student out of school without the parents’ knowledge. When the teacher returned to her classroom, she looked at the stored messages on the phone, found text messages of a sexual nature, and contacted the police. Based on the record, the trial court concluded that Young’s expectation of privacy was not objectively reasonable. She did not possess the phone and had a limited property interest in the item. She did not have control over the phone because she had given it to the student and the student took control

over it. Under these circumstances, Young failed to establish a reasonable expectation of privacy in the phone. Thus, she did not have standing to challenge the search of the student’s cell phone. Things to Remember: This interesting case sheds no light on the legality of cell phone searches. The court never reached that issue. Instead, the court held that Ms. Young did not have the legal right to challenge the legality of the search. Thus, the ruling is about “standing” rather than search and seizure. However, in analyzing that issue, the court does provide some guidance on what it takes to establish a “reasonable expectation of privacy.” Giving your cell phone to a teenager “with no strings attached” is inconsistent with any “reasonable” expectation of privacy.

TASSP — LEGAL DIGEST Conference Registration Now Open The 24th annual

TASSP – LEGAL DIGEST CONFERENCE ON EDUCATION LAW for Principals TUEsday, June 14, 2011 Austin Convention Center • Austin, Texas TASSP Member-Legal Digest Subscriber Early Registration Special: $150 per Registration Produced in partnership with the Texas Association of Secondary School Principals (TASSP) this conference features presentations on legal issues of particular concern to school principals and other campus-level personnel as well as superintendents, school board members, and school attorneys. This year’s conference will be held at the Austin Convention Center on Tuesday, June 14, 2011. Registration will open at 7:00 A.M. The conference program begins at 8:30 A.M. and concludes at 3:55 P.M. To register, complete the form below and mail with a check, purchase order, or credit card information. A message confirming your registration will be sent to the email address you provided below. For additional information on the conference or accommodations, check our website at www.legaldigest.com, or contact the Legal Digest at 512-478-2113.

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TCASE - LEGAL DIGEST CONFERENCE ON SPECIAL EDUCATION LAW Same Conference – Two Convenient Locations The Texas Council of Administrators of Special Education and the Texas School Administrators’ Legal Digest are pleased to announce the twenty-fifth annual one-day conference on current issues concerning the education of students with disabilities. Special education directors and other special education personnel, as well as superintendents, principals, school board members, and school attorneys will find this conference valuable. Please visit www.legaldigest.com for more details.

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February, 2011