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

LEGAL DIGEST Volume 21, Number 5

TM

May 2005

ASSAULT LEAVE FOR SCHOOL EMPLOYEES By Eric W. Schulze Attorney at Law Walsh, Anderson, Brown, Schulze & Aldridge, P.C. Austin, Texas

Could the events described in two recent newspaper articles have occurred in your school district? The first article reported that the County Attorney was deciding whether to pursue charges against a junior high student who allegedly assaulted a special education teacher and teacher’s aide. The teacher was punched several times in the face and head by the student with Down Syndrome before he could be restrained by other employees.1 Two weeks later in another area of the State, a second article reported that following a 911 call by school officials, a high school student was arrested and charged with assaulting a public servant after reportedly attacking his teacher at school. The teacher was treated and released from the local hospital.2 Assaults upon school district employees have been and continue to be a significant problem across the State. For the 2003-04 school year, alone, approximately 1,221 students committed assaults against school employees in Texas.3 The problem has been studied and addressed on any number of fronts, from increasing the emphasis on a safe school environment for both employees and students, to mandating harsher criminal penalties for assaults against teachers and other public servants, to requiring specific disciplinary consequences up to and including expulsion for students who assault school employees. Since 1983 the Texas Legislature has tackled the problem of assaults on school district employees by addressing not just the criminal and disciplinary punishments for the perpetrators, but also by addressing the benefits provided the employeevictims in order to allow them sufficient time to recover from any such assaults. The Legislature first enacted “assault leave” as part of the Education Code in 1983. Initially part of the state sick leave statute, the assault leave provisions have been

tweaked and amended during the twenty-two year history of the statute, but they always have required a school district to provide an employee who has been physically assaulted while performing his or her duties up to two years of “assault leave.”4 When the Texas Education Code was overhauled and recodified in 1995, the assault leave provisions moved to § 22.003(b) of the Code as part of the state-mandated “Minimum Personal Leave Program” that is the subject of that statute. The assault leave requirements remain part of § 22.003. However, in 2001 the Texas Legislature amended the provisions yet again to add new subsection 22.003(c). The new provisions clarified the eligibility of employees for assault leave by specifying that the leave includes physical assaults by students whose age or mental capacity would otherwise preclude prosecution and liability for the crime of assault under the Texas Penal Code. The current version of the assault leave provisions contained in subsections 22.003(b) and (c) of the Education Code provide as follows: TEXAS EDUC. CODE § 22.003. MINIMUM PERSONAL LEAVE PROGRAM (b) In addition to all other days of leave provided by this section or by the school district, an employee of a school district who is physically assaulted during the performance of the employee’s regular duties is entitled to the number of days of leave necessary to recuperate from all physical injuries sustained as a result of the assault. At the request of an employee, the school district must immediately assign an employee to assault leave and, on investigation of the claim, may change the assault leave status and charge

IN THIS ISSUE . . . • Assault Leave for School Employees (Eric W. Schulze) • Law Dawg (Jim Walsh) • The Educator’s Guide to Texas School Law, Sixth Edition 10% pre-publication offer • Legal Developments


2 the leave against the employee’s accrued personal leave or against an employee’s pay if insufficient accrued personal leave is available. Days of leave taken under this subsection may not be deducted from accrued personal leave. The period provided by this subsection may not extend more than two years beyond the date of the assault. Notwithstanding any other law, assault leave policy benefits due to an employee shall be coordinated with temporary income benefits due from workers’ compensation so that the employee’s total compensation from temporary income benefits and assault leave policy benefits equals 100 percent of the employee’s weekly rate of pay. (c) For purposes of Subsection (b), an employee of a school district is physically assaulted if the person engaging in the conduct causing injury to the employee: (1) could be prosecuted for assault; or (2) could not be prosecuted for assault only because the person’s age or mental capacity makes the person a nonresponsible person for purposes of criminal liability. A number of different issues can arise when a school employee seeks assault leave. Substantive issues often arise as to whether the employee’s injuries were caused by an assault or a mere accident. Because the assault leave provisions explicitly are tied to criminal standards for the prosecution of assault, granting or denying the leave may depend upon the Texas Penal Code’s requirements regarding criminal causation and the state of mind of the perpetrator. Moreover, procedural issues are likely to arise when granting or denying assault leave, ranging from the timing of granting assault leave, to investigating the assault, to the consequences if the investigation determines that assault leave is not warranted, to the pay due the employee, etc. When a school employee has been denied assault leave, the route of appeal is (1) first to the school board for a grievance hearing, and (2) then to the State Commissioner of Education under TEX. EDUC. CODE § 7.057(a) with a claim that the school board violated a school law (i.e., § 22.003). Assault leave under the Education Code has been addressed in a number of Commissioner decisions but very few court decisions. In interpreting the assault leave statute, the Commissioner has Texas School Administrators’ Legal Digest ISSN 0882 – 021X Managing Editor Co-Edited By Jim Walsh Laurie Maniotis & Jennifer Childress Published monthly except July and December Individual subscription ................................................................... $130 Copyright © 2005. Reproduction of all or part of this publication requires permission from the editor. Texas School Administrators’ Legal Digest welcomes your comments and contributions, though publication is not guaranteed. The views of feature article authors are their own and do not necessarily reflect the views of the DIGEST. The information provided in the DIGEST is not intended to constitute specific legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Direct correspondence and subscription inquiries to: Texas School Administrators’ Legal Digest Editorial Office Business and Conference Office P. O. Box 2156 610 North Bell Avenue Austin, TX 78768 Denton, TX 76209 512-454-6864 940-382-7212 FAX 940-383-3809 Email info@legaldigest.com Website www.legaldigest.com

stated that it is to be considered a “remedial” statute, and thus it is to be “construed broadly” and given “the most comprehensive and liberal construction possible.”5 The purpose of this article is to provide an overview of the assault leave provisions and their interpretation by the Commissioner, in order to help educators sort through the various substantive and procedural issues involved in this area where education law and criminal law intersect. HAS THE SCHOOL EMPLOYEE BEEN PHYSICALLY ASSAULTED? The most often litigated issue involving assault leave involves the threshold substantive question. Has a school employee been physically assaulted? The answer to that seemingly simple question, however, can depend on any number of facts and factors. Consider, for example, a scenario in which a student is running down the hall to beat the tardy bell. He trips and falls into the teacher who is acting as hall monitor, and the teacher is injured as a result. Is that an assault or simply an accident? What if the student intentionally had shoved another student out of his way as he was running, and it was that second student who bounced into the teacher, thus injuring her — assault or accident? Typically, workplace accidents are handled and compensated under the State’s workers’ compensation laws. For assaults, however, the State’s criminal laws are implicated. The assault leave provisions of § 22.003(b) refer to a school employee who is “physically assaulted during the performance of the employee’s regular duties.” Section 22.003(c), in turn, specifies that an employee is “physically assaulted” if the person engaging in the conduct causing the injury “could be prosecuted for assault” or “could not be prosecuted for assault only because the person’s age or mental capacity makes the person a nonresponsible person for purposes of criminal liability.” A necessary component of assault leave thus is a review of whether the person causing the injury could be prosecuted for the crime of assault. Even before subsection 22.003(c) was added in 2001, Commissioner decisions long had established that the laws and definitions contained in the State’s criminal statutes would be used for analyzing assault leave under the Education Code.6 Under TEXAS PENAL CODE § 22.01, a criminal assault can be caused by bodily injury, threats of bodily injury, or offensive physical contact. Because assault leave is restricted to “physical” assaults, however, threats of injury will not suffice under the Education Code. Thus, the definitions of a physical assault as contained in § 22.01(a)(1) and (a)(3) are used to analyze assault leave. Those two subsections provide as follows: TEXAS PENAL CODE § 22.01. ASSAULT (a) A person commits an offense if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse; (2) [omitted]; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. The provisions of the Penal Code thus define an assault in terms of intentional, knowing, or reckless conduct by a person.


3 What is meant by those terms? Again, the answer is found in the Penal Code. To determine whether the person who injured the school employee committed an assault by acting intentionally, knowingly, or recklessly, the Commissioner applies the “state of mind” definitions contained in Penal Code § 6.03(a), (b), and (c), which provide as follows: TEXAS PENAL CODE § 6.03. DEFINITIONS OF CULPABLE MENTAL STATES (a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. (b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. (c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. Thus, for a physical assault to occur the person must (per the definitions above) either (1) intentionally, knowingly, or recklessly cause bodily injury, or (2) intentionally or knowingly cause offensive or provocative physical contact. Easy to apply? Not so fast. Under the criminal assault provisions of § 22.01(a), the person (with the requisite mental state) must “cause” the bodily injury or offensive contact. What if the school employee is partly at fault for causing his or her own injury? What if, as in the example above, there is a “domino effect” where one student shoves another who then falls into a teacher? Who has “caused” the bodily injury or offensive contact in these examples? To determine if assault leave is warranted because an assault has occurred, the Commissioner again looks to the criminal laws and applies the causation provisions of § 6.04 of the Penal Code, which provide as follows: TEXAS PENAL CODE § 6.04. CAUSATION: CONDUCT AND RESULTS (a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. (b) A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that: (1) a different offense was committed; or (2) a different person or property was injured, harmed, or otherwise affected.

A review of some of the cases is the best way to illustrate how the criminal provisions apply in the context of requests for assault leave. The easy cases are not the ones that usually are litigated, i.e., where a student clearly intends to cause bodily injury to or offensive physical contact with the school employee. Instead, the following cases involve the more difficult questions of whether, under the Penal Code, there has been a § 22.01 “assault” by person with the requisite § 6.03 “mental state” whose conduct under § 6.04 “causes” the bodily injury or offensive contact. No Assault Found - The Accident Cases In two cases, the Commissioner concluded that the school district properly had denied the school employees assault leave benefits because no “assault” had occurred. In the first case, the teacher was injured while attempting to escort a six-year old student, who had been engaged in a fight with another student, to the principal’s office. As the teacher escorted the student, his feet tangled with hers, and the teacher lost her balance and flipped onto her back. Reviewing both the teacher’s signed accident report and an independent private investigator’s report, the Commissioner found that no assault had occurred because “[t]he student did not have the requisite mental state” under § 6.03 to commit an assault,’i.e., he did not act intentionally, knowingly, or recklessly. The Commissioner concluded that “[a]n accident occurred for which the blame cannot be placed on the student.”7 In the second case, the student initially refused to leave the room when instructed to do so by the teacher. The teacher approached the student, again telling her to leave, and even removed the paper from the girl’s typewriter, which prompted the girl finally to pack up her book bag. As the student swung the book bag over her shoulder, it struck the teacher, who was standing behind the girl, and the impact aggravated a previous back injury. Again the Commissioner concluded that no assault had occurred because the student did not have the requisite mental state under § 6.03 to commit an assault. The Commissioner noted that it was a “difficult question” as to whether the student “recklessly” caused bodily injury, however substantial evidence had been presented to the school board showing not only did the girl not intend to hit the teacher, but she did not even realize that the teacher could have been so close behind her (because the cubicle she was in was so small). The evidence supported a finding that the teacher’s injury was an accident and that the student had not “consciously disregard[ed] a substantial and unjustifiable risk” as is required for reckless conduct under § 6.03(c). The Commissioner’s decision was appealed and eventually affirmed by the Austin Court of Appeals.8 In a subsequent case, the Commissioner discussed both of those cases and noted their common features that led him to conclude that accidents, rather than assaults, had occurred. In each case, substantial evidence supported a finding that “an accident had occurred for which the student could not be blamed.” In both cases, the students’ actions were “not wrongful,” not even reckless under § 6.03(c).9 If a school district intends to deny assault leave based upon the substantive reason that the injuries were caused by an accident, not an assault, then it should be prepared to base its decision on evidence that would establish similar findings.


4 Assault Found In contrast to those two “accident” cases, in a number of other cases the Commissioner concluded that school districts erroneously had denied assault leave because in each case an assault indeed had occurred. First, there are the student “restraint” cases. In one case, three female students were engaged in a “physical altercation” in the school employee’s office. The employee placed herself between two of the students and attempted to restrain one of them. When that student then attempted to break free of the restraint, the employee sustained injuries to her neck, shoulder, and back. Although the student did not intend to injure the employee, she recklessly had caused the bodily injury with her wrongful conduct, and an assault had occurred.10 In another case, a nine-year old student with Attention Deficit Hyperactivity Disorder (who apparently was off his medication and out-of-control) attempted to leave the school grounds. The school counselor attempted to restrain the boy (who was aware of his surroundings and knew what he was doing), and during an ensuing struggle she was injured as a result. The Commissioner concluded that “[t]he fact that a student receives special education services does not mean that the student is incapable of conduct that is intentional, knowing, or reckless.” In this case, an assault occurred when “the student acted at least with a mental state of knowledge or recklessness.”11 In a third “restraint” case, the school police officer observed a fistfight between two middle school students, the students ignored his verbal commands to stop, and while physically separating the two fighting students the officer’s shoulder was injured. Neither of the boys hit the officer. His injury occurred when he overextended his arm and shoulder while restraining the students. In this case, the school police officer was assaulted whether by receiving bodily injury or offensive physical contact during the fight. Moreover, the requisite mental state of intent for the assault was established. First, “intent may be presumed when an injury is caused by violence,” and no evidence rebutted that presumption. Second, the doctrine of “transferred intent” established the students’ requisite mental state. Under the causation standards of Penal Code § 6.04(b), a person is criminally responsible for causing a result if the only difference between what actually occurred and what was desired is that a different person was injured. During the fistfight the students were acting intentionally to hit and assault each other, and their intent could be imputed to their causing the officer’s bodily injury. “When one intends to attack a person but instead attacks another, the doctrine of transferred intent holds that one has the required mental state to assault the individual who was actually injured.”12 Next come the “domino effect” cases, where through a series of events that are begun by a student, the school employee ultimately is injured. The first of these cases involved a teacher who was on hall duty. Following a fight, a female student was being led away by two other girls. She jerked away from those girls. Two boys then tried to grab the student, but she flung the boys from her, and the boys caused yet another student to fall into the teacher’s lower back. Several months later, the teacher underwent an operation for a herniated disk. The school district denied the teacher assault leave under the theory that no assault had occurred, because the student who eventually fell into the teacher did not intentionally, knowingly, or recklessly cause the bodily injury. The Commissioner reversed the district’s decision, concluding that the teacher was physically assaulted in the performance of her regular duties. At the very least, the

female student who was flinging the others around had acted recklessly, in that she was aware of but consciously disregarded a substantial and unjustifiable risk that the result would occur. Moreover, as in the previous case, the Commissioner noted that “intent can be presumed when the injury is caused by violence.”13 In the other “domino effect” case, as the teacher was leaving her classroom, one student pushed a second student in an effort to get to his locker. The second student lost his balance and fell into several other students in the area. One of those students pushed backwards into the teacher, causing the teacher to be pushed backward into yet another student and to sustain injuries as she was sandwiched between the two students. Assault or accident? The Commissioner held that an assault had occurred, but a state district court recently reversed that decision on appeal. The Commissioner concluded that an assault had occurred for several reasons, even though it was clear that no student intentionally or knowingly had injured the teacher directly. First, the initial student recklessly had assaulted the teacher. “The natural and probable result of pushing someone in a hall full of moving people is that people will fall down.” By starting the domino effect with the push, the student had disregarded a substantial and unjustified risk of bodily injury. Second, that student had intended to shove another student. Pursuant to the doctrine of transferred intent under Penal Code § 6.04(b), a person is “responsible for causing the result if the only difference between what actually occurred and what was desired, contemplated, or risked is that a different person was injured, harmed, or otherwise affected.” Thus, pursuant to that doctrine the student intentionally had assaulted the teacher. Moreover, “there is a presumption of intent when an injury is caused by violence.” Finally, the Commissioner concluded that even if the boys in the hall had been engaged in horseplay, “[t]here is no general horseplay exception to assault.” The school district then appealed the Commissioner’s decision, and on May 4, 2005, a state district court reversed the Commissioner’s decision. The district court questioned both the Commissioner’s authority to apply criminal presumptions in an assault leave case (which presumptions had not been raised at the local board hearing) and her application of the substantial evidence standard in this case — but, the court’s order simply reflects that the Commissioner’s decision is reversed without explaining the rationale of the court.14 Finally there are the assault leave cases in which the districts argue the causation issue, i.e., that the school employee’s own actions caused the injuries either at the time of the event or later (if there was a delay in reporting the alleged assault). In the special education restraint case discussed above, the district argued that it was the counselor, who (through her own actions in attempting the restraint) had caused her injury, not the student. Regardless of whether the counselor’s actions were a concurrent cause of the injury, however, under Penal Code § 6.04(a), the injury would not have occurred “but for” the student’s conduct, so the cause of the bodily injury could be attributed to an assault by the student.15 Likewise, in the case involving the school police officer breaking up the fistfight, the district argued that because the officer himself had reported that he had overextended his arm and shoulder, then he had caused his own injury, not the students. The Commissioner disagreed. Though the officer’s actions were a concurrent cause, “[n]o injury would have occurred but for the students’ fighting.” Under § 6.04(a), the students’ assault was sufficient cause of the injury.16 In sum, to apply the assault leave statute and to determine whether a physical assault has occurred, educators are required to know and apply the criminal standards for the prosecution


5 of an assault. An assault has not occurred when an employee’s injuries are caused by an accident in which a student’s actions are not wrongful, not even reckless, and the student cannot be blamed for the injuries. However, educators carefully should analyze whether a physical assault has occurred because a person, other than the injured employee, either (1) intentionally, knowingly, or recklessly caused bodily injury, or (2) intentionally or knowingly caused offensive or provocative physical contact. When in doubt, school officials should contact the school district’s attorney and obtain guidance in applying these often unfamiliar and complex criminal standards. PROCEDURAL ISSUES THAT ARISE IN ASSAULT LEAVE CASES Just as the Commissioner has addressed numerous cases involving the substantive issue of whether a physical assault occurred, in several cases he also has addressed assault leave procedural requirements. The assault leave procedures required by § 22.003(b) of the Education Code sometimes are not as straightforward in their application as they might seem, when those procedures interact with other school laws. For example, can a probationary teacher be terminated at the end of her contract term while she is on assault leave? Must assault leave be granted an employee who already has resigned? What is required for an assault leave investigation? The failure of either the school employee or the school district properly to follow the required procedures may result in reversal on appeal by the Commissioner. Some of the procedural issues that most often arise include the following. Grant the Assault Leave upon Request, then Investigate The Education Code itself specifies the proper order of granting and investigating requests for assault leave. Grant the leave upon request and then investigate — not vice versa. Section 22.003(b) of the Education Code provides that “[a]t the request of an employee, the school district must immediately assign an employee to assault leave and, on investigation of the claim, may change the assault leave status and charge the leave against the employee’s accrued personal leave or against an employee’s pay if insufficient accrued personal leave is available.” Assault leave should be granted upon a request, even if the school employee already has resigned. In one case, the probationary teacher submitted a resignation on February 23rd, effective at the end of the school year. Thereafter, on April 13th, she was assaulted and sustained bodily injury. The resignation took effect, and over the summer the woman’s condition relapsed. She did not request assault leave until September 15th (and apparently did not know of its availability until that point). The woman was not a current employee, so the school district investigated her request and determined that (1) she had not been assaulted, and (2) even if she had been assaulted, any assault leave would have expired at the end of the school year when her resignation took effect. The Commissioner disagreed, concluding that the woman had been assaulted and that the district had violated the procedures required by § 22.003(b). The school district was required to place the woman on assault leave when she requested the leave on September 15th, and it violated § 22.003(b) by not doing so. The woman’s resignation

submitted prior to the assault did not limit her assault leave benefits, and she was entitled to assault leave from April 13th “until she has recovered from her physical injuries caused by the assault or until two years have passed since the injury, whichever comes first.”17 Remember, while on assault leave the employee is entitled to additional income on top of workers’ compensation benefits. The assault leave statute, itself, specifies that “[n]otwithstanding any other law, assault leave policy benefits due to an employee shall be coordinated with temporary income benefits due from workers’ compensation so that the employee’s total compensation from temporary income benefits and assault leave policy benefits equals 100 percent of the employee’s weekly rate of pay.”18 Although assault leave benefits can be costly when the leave lasts the maximum two year period following the assault, not all of the cases involve the maximum amount of leave. In one case, the employee appealed from the school board, to the Commissioner, and into the courts, when (following an investigation) his assault leave status was changed and denied, resulting in “five days from [his] accrued personal leave” being deducted.19 After the assault leave is granted upon request, the teacher is not insulated from employment actions that otherwise would have occurred. In another case, a probationary teacher was injured when a student assaulted her and struck her in the face. Per the teacher’s request, she was placed on assault leave. Prior to the end of the school year, however, the school district then informed the teacher that (1) it had decided to terminate the probationary contract at the end of the contract term, but (2) the termination would not in any way affect the status of her assault leave. The teacher claimed that she could not be terminated while on assault leave. The Commissioner disagreed. “A school district may terminate a teacher’s probationary contract at the end of the contract term when the teacher is on assault leave so long as the reason for the termination is not the fact that the teacher has taken assault leave.” In this case, the school district had legitimate business reasons for the employment action (e.g., concerns about the woman’s performance; the teacher had taken materials from another district without permission), and it continued to provide the former teacher with the salary and benefits to which she was entitled under her assault leave. No procedural violation had occurred.20 After the school district grants a request for assault leave, thereafter it may change the status of that leave pursuant to an investigation of the alleged assault. What type of “investigation” is required and how extensive must it be? The statute does not specify and that term is not defined. As one court observed, however, “[w]hile the Legislature has mandated that assault leave be revoked only after an ‘investigation,’ the scope of the investigation and the procedures for conducting such an investigation have been left to the discretion of local school boards.” 21 The investigation may include a report from an independent investigation firm hired by the school district.22 Regardless of whether outside investigators are used, however, it is advisable that the investigation include interviews with and signed statements from both the injured employee and the witnesses to the alleged assault. Moreover, because of the complex criminal standards involved, school administrators should consider obtaining the assistance of legal counsel at the investigation stage in order to make certain that the evidence obtained during the investigation fully addresses the applicable criminal standards.


6 The Local Hearing If, after an investigation, the decision is made to change the status and deny the assault leave, the school employee may challenge that decision through the local grievance procedures established under school district policy. Simply because an “investigation” is required does not mean that assault leave status may be revoked only pursuant to a full scale evidentiary, trial-type hearing.23 “Because there is no language that explicitly requires a full-scale evidentiary, trial-type hearing by the Board when it considers assault leave status, we conclude that the same procedures provided for hearing other grievances will satisfy the requirements of due process for grievances regarding assault leave.”24 An employee who has been denied assault leave by the school administration may not obtain a reversal of that decision simply by addressing the school board during the “open comment” section of a board meeting. The employee must go through the grievance process and request a board hearing, since a board “cannot vote to sustain or overrule a grievance based on an open comment presentation” that lacks a properly posted agenda item pursuant to the Open Meetings Act.25 If the assault leave grievance hearing is requested but the school board refuses to hold a hearing without justification, the Commissioner has warned that he may conclude that the school board has denied the grievance and that the employee should prevail because there is no substantial evidence to support the board’s action.26 As with other grievances, when a grievance over the denial of assault leave is heard by the local school board, the board is not required to make specific findings of fact or conclusions of law about its decision.27 Further, the Texas Rules of Civil Evidence and the Texas Rules of Civil Procedure do not apply to a school board hearing an assault leave grievance.28 Nevertheless, as with any other grievance that may be appealed to the Commissioner, the board must develop a “record” of the grievance that both (1) is sufficiently clear to disclose the intentions of the board, and (2) will permit review by the Commissioner.29 In one case, the failure of the board to create such a record led the Commissioner to grant the employee’s appeal and to conclude that she was entitled to assault leave. The board had not taped or transcribed the presentations to the board concerning the grievance over the denial of assault leave. At issue was whether the teacher was injured by an assault or an accident, and without the local record the Commissioner could not determine whether substantial evidence supported the board’s conclusion that the student lacked the required “mental state” to commit an assault under Penal Code § 6.03. The Commissioner concluded that the school district had “no excuse” for not making a local record that included “at least an electronic recording or written transcript of all oral testimony and argument.” Although “extenuating circumstances,” such as the accidental destruction of the record, might justify sending a case back to a school board to hold another hearing, no such circumstances were present in this case. Because the school district failed to make a local record as required by the Education Code (which record was necessary to resolve the case), the Commissioner held that the district’s decision to deny assault leave would be deemed unlawful. The denial of assault leave thus was reversed due to the procedural violation.30 Like other grievance appeals, the board may deny an assault leave on the basis that the grievance is untimely. In one case, the school employee claimed that she was assaulted on

October 20, 1998, when a student ran into her. However, no grievance was filed until February 18, 2002, despite the local policy requiring a grievance to be filed within 15 days of the date that the grievant first knew or should have known of the event causing the grievance. The Commissioner concluded that the employee’s grievance was untimely because it was not filed in accordance with the local policy. The case was dismissed because the employee thus failed to exhaust administrative remedies as required.31 The Appeal to the Commissioner When a school district denies assault leave to an employee, the employee may appeal contending that the district violated the substantive or procedural requirements of § 22.003. Pursuant to TEX. EDUC. CODE § 7.057(a)(2), the Commissioner has jurisdiction to hear an appeal from a person aggrieved by a decision of a school board that violates the school laws of Texas. One assault leave case was sent back to the Commissioner from the courts because he had misapplied the appropriate standard of his review under § 7.057. When the Commissioner issued his second decision in that case, he stated that in a § 7.057 case brought against a school district, “the Commissioner’s decision is to be based on a review of the record developed at the district level under a substantial evidence standard of review.”32 One court explained the Commissioner’s “substantial evidence” standard of review in an assault leave case as follows: The substantial evidence standard of review is a reasonableness or rational basis test. The Commissioner reviews the reasonableness of the Board’s decision, not the correctness of its decision. The test is not whether the Board reached the correct conclusion, but whether some reasonable basis exists in the record for its action. The Commissioner may not substitute his judgment for that of the Board and may consider only the record on which the Board based its decision. “The findings, inferences, conclusions, and decisions of [the Board] are presumed to be supported by substantial evidence, and the burden is on the contestant to prove otherwise.” This burden is not met by a showing that the evidence preponderates against the Board’s decision. If substantial evidence would support either affirmance or reversal of the Board’s findings, the Commissioner must affirm the Board’s decision. Substantial evidence review does not dictate an examination of the admissibility of the evidence forming the basis for the Board’s decision.33 Applying a substantial evidence review in an assault leave case in which the issue was whether the student had the requisite “mental state” to commit an assault, the Commissioner thus stated that he was “to determine whether a reasonable finder of fact could determine based on the local record that the student’s actions causing the injuries were done intentionally, knowingly, or recklessly as defined by the Penal Code.”34 As in other cases appealed to the Commissioner under § 7.057, the school employee must timely file an appeal or the Commissioner will dismiss the case. “By rule, the Commissioner requires a petition for review to be filed within 45 calendar days after the ruling complained of is first communicated to the petitioner.” In one case, the school board heard and denied the school employee’s grievance seeking assault leave benefits on March 26th and communicated its decision to him that same


7 date. Any appeal thus should have been filed with the Commissioner by filing a petition for review no later than May 10th. The employee filed the petition 32 days late, on June 11th. The Commissioner dismissed the assault leave appeal for lack of jurisdiction.35 CONCLUSION As noted at the beginning of this article, assaults against school employees are a significant problem across the State. The person who commits the assault may be criminally prosecuted, as happened when a man fondled a teacher as she walked across campus, resulting in a fine and/or jail time.36 The student who commits the assault may be subjected to a mandatory or permissive expulsion under TEX. EDUC. CODE § 37.007, depending upon factors such as whether it was an “aggravated” assault (i.e., serious bodily injury was caused or a weapon was involved) or a “sexual” assault.37 Various bills have been filed during the current session of the Texas Legislature that seek both to enhance the criminal punishment for assaulting a school employee and to mandate expulsion for any student whose assault on a school employee causes bodily injury.38 For 22 years the State and its school districts also have been addressing the problem of assaults on school employees from the standpoint of the time and benefits needed to allow the victim to recuperate. Applying the “assault leave” provisions of TEX. EDUC. CODE § 22.003 will require a certain degree of familiarity with the Texas criminal laws governing an assault. Often, to determine if assault leave is warranted, school administrators must determine whether, under the Texas Penal Code, there has been a § 22.01 “assault” by person with the requisite § 6.03 “mental state” whose conduct under § 6.04 “causes” bodily injury or offensive contact. The decisions of the Commissioner and the few courts that have addressed assault leave provide guidance in interpreting and applying the criminal concepts in the school setting. Remember, adminstrators should grant the assault leave upon request and then investigate the circumstances surrounding the alleged assault before changing the status and denying assault leave. Further, school officials should be forewarned that the assault leave provisions will be “construed broadly” and given “the most comprehensive and liberal construction possible” when a denial of assault leave is reviewed by the Commissioner.39 However, by analyzing the Penal Code provisions and following the decisions interpreting § 22.003, educators properly can resolve the various substantive and procedural issues involved in this area where education law and criminal law intersect. ENDNOTES 1. The Seguin Gazette-Enterprise, seguingazette.com, 10/8/ 04, “Corbett teacher alleges assault by student.” 2. The Bryan-College Station Eagle, theeagle.com, 10/26/04, “Consolidated student arrested in assault.” 3. Legislative Budget Board, 79th Legislative Regular Session, 3/29/05 Fiscal Note submitted to the House Committee on Public Education for House Bill 11. 4. Originally added as TEX. EDUC. CODE § 13.904(f) by Acts 1983, 68th Leg., ch. 334, effective September 1, 1983. For a legislative historical review of the assault leave provisions, see generally TEX. A.G. OP. JM-915 (1988) and A.G. LETTER OPINION 94-030 (1994).

5. McCaleb v. Arlington ISD, No. 072-R10-601 (Comm’r Educ. 2004)(“McCaleb II”); see also, Paggett-Bryant v. Sunnyvale ISD, No. 071-R10-603 (Comm’r Educ. 2004), rev’d on other grounds, see endnote 14. 6. Gutierrez v. Judson ISD, No. 065-R10-1299 (Comm’r Educ. 2001); Hennigan v. Spurger ISD, 112-R10-700 (Comm’r Educ. 2001); Bryan v. Pharr-San Juan-Alamo ISD, No. 094R10-498 (Comm’r Educ. 1999); Friar v. Austin ISD, No. 113-R10-596 (Comm’r Educ. 1997); Riddle v. Commerce ISD, No. 285-R10-586 (Comm’r Educ. 1988). 7. Bryan v. Pharr-San Juan-Alamo ISD, see endnote 6. 8. Friar v. Austin ISD, No. 113-R10-596 (Comm’r Educ. 1997), aff ’d, Friar v. Moses and Austin ISD, 2000 WL 564176 (Tex. App. — Austin 2000) (not designated for publication). 9. Hennigan v. Spurger ISD, see endnote 6. 10. Id. 11. McCaleb v. Arlington ISD (“McCaleb II”), see endnote 5. 12. Gutierrez v. Judson ISD, see endnote 6. 13. Riddle v. Commerce ISD, see endnote 6. 14. Paggett-Bryant v. Sunnyvale ISD, No. 071-R10-603 (Comm’r Educ. 2004), rev’d, Sunnyvale ISD v. Neeley, et al., No. GV4-02653 (261st Dist. Ct. of Travis County, May 4, 2005). 15. McCaleb v. Arlington ISD (“McCaleb II”), see endnote 5. 16. Gutierrez v. Judson ISD, see endnote 6. 17. McCaleb v. Arlington ISD (“McCaleb II”), see endnote 5. 18. TEX. EDUC. CODE § 22.003(b). 19. Friar v. Moses and Austin ISD, 2000 WL 564176 (Tex. App. — Austin 2000) (not designated for publication). 20. Gier v. Lake Worth ISD, No. 084-R10-703 (Comm’r Educ. 2004). 21. Friar v. Moses and Austin ISD, see endnote 19. 22. Bryan v. Pharr-San Juan-Alamo ISD, see endnote 6. 23. Friar v. Moses and Austin ISD, see endnote 19. 24. Id. 25. Thompson v. Fort Worth ISD, No. 155-R8-497 (Comm’r Educ. 2002)(“Thompson I”). 26. Id. See also, Craig v. North Forest ISD, No. 175-R10-699 (Comm’r Educ. 2000)(“Craig I”). 27. McCaleb v. Arlington ISD (“McCaleb II”), see endnote 5. 28. Bryan v. Pharr-San Juan-Alamo ISD, see endnote 6. 29. McCaleb v. Arlington ISD (“McCaleb II”), see endnote 5. 30. Taylor v. Marshall ISD, No. 130-R10-297 (Comm’r Educ. 1997). 31. de la Luz Salinas v. McAllen ISD, No. 104-R10-802 (Comm’r Educ. 2004). 32. McCaleb v. Arlington ISD (“McCaleb II”), see endnote 5. 33. Friar v. Moses and Austin ISD, see endnote 19. 34. McCaleb v. Arlington ISD (“McCaleb II”), see endnote 5. 35. Combs v. Glen Rose ISD, No. 082-R10-701 (Comm’r Educ. 2002). See also, Craig v. North Forest ISD, No. 057-R10401 (Comm’r Educ. 2002)(“Craig II”). 36. Trujillo v. State of Texas, 809 S.W.2d 593 (Tex. App. — San Antonio 1991). 37. See the following sections of the Texas Penal Code for: “sexual assault (§ 22.011), “aggravated assault” (§ 22.02), and “aggravated sexual assault” (§ 22.021). 38. See, e.g., the following bills filed during the 2005 regular legislative session: HB 11, HB 527, and HB 783. 39. McCaleb v. Arlington ISD (“McCaleb II”) and PaggettBryant v. Sunnyvale ISD, see endnotes 5 and 14.


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

DEAR DAWG: I know there is a lot of concern over steroid use by student athletes, but I’m wondering if there are any legal issues when school administrators use steroids. Now don’t quote me on this, because we’re not sure, but everyone around here thinks that our current Director of Human Resources is taking some sort of “administrator steroid.” Over the past six months, the man’s head has gotten noticeably larger. Furthermore, he knows the answers to obscure questions that used to baffle him. Right off the top of his (unusually large) head he can quote chapter and verse from the Texas Education Code, Texas Administrative Code and local policy. Last week a bunch of us were having lunch when someone expressed confusion about how leave under the Family Medical Leave Act intersects with Workers Comp, Personal Days, and Temporary Disability Leave. Between bites of his sandwich, the man provided us with a masterful presentation of how it all works, complete with citations to important court cases. All this from memory. Now, Dawg, we have known this guy a long time. We’ve always liked him, and felt that he could do the job, but no one ever nominated him for sharpest blade in the drawer, if you know what I mean. I am convinced he’s taking something. Is it illegal? If so, what is the penalty? If not, where do I get some? COULD USE A FEW MORE IQ POINTS MYSELF. DEAR COULD USE: We are not aware of any “administrator steroids” but we are sure someone will invent something someday. Keep us posted.

DEAR DAWG: We have a new special education student whose IEP is presenting us with some problems. Of course we know nothing about the student, since she is new here. The parent gave us a copy of the IEP that the previous district was planning to use, but something about it doesn’t look right to me. This IEP is gold plated, Dawg. It guarantees the student will be in the top 10% of her high school class. It provides one-on-one instruction in any class in which the student’s average falls below a 90. It provides individualized music therapy, counseling and “recreational therapy” which we are told means “bowling.” The top of the first page of the IEP reads “BON VOYAGE!” What does this mean? SUSPICIOUS. DEAR SUSPICIOUS: A “Bon Voyage” IEP is the one the school district gives to the student who is about to leave the district. We’d be willing to bet that the previous district had a lot of trouble keeping the parents happy. A “Bon Voyage” IEP is a sort of going away present, designed to end the relationship happily. Basically, the district loads up the IEP with all sorts of services, needed or not, knowing that the student is leaving. Of course, it puts you in kind of a tough situation, doesn’t it? After all, the IEP represents what the previous district believes the student needs in order to receive an appropriate education. So you get to be the bad guy, and explain why you are not willing to do what the other district was going to do. Not a nice thing to do to your fellow school district.

DEAR DAWG: I hear there is a new law which prohibits school districts from requiring that kids take medication to attend school. Were we supposed to be requiring medication? I was not aware. Our district has never required that a student take any kind of medication—were we supposed to be doing that? HOPE WE DIDN’T VIOLATE THE LAW. DEAR HOPE WE DIDN’T: No!!! The new law is a part of the new IDEA which pertains to special education. The provision in the new IDEA is very similar to Section 38.016 of the Texas Education Code, which already prohibits school employees from pressuring parents to get their kids on medication. We continue to advise that medication decisions about children belong to the parents and the child’s doctor. But as for you, you can medicate yourself to your heart’s desire, within the limits of the law. Overly medicated school employees should not operate heavy machinery or attempt other dangerous activities, such as teaching children.

DEAR DAWG: Some brilliant consultant has come to our district and recommended that we should change various job titles to reflect our educational mission. “Everyone involved in education,” Dr. Smarternyou advised, “should have a job title that reflects the educational mission.” Sounds good until you get down to the details. We no longer have bus drivers. We have “Transporters of Learners.” We no longer have cafeteria workers. We have “Nutritional Suppliers for Learners.” We don’t have custodians anymore. We have “Those Who Clean Up After Learners,” who are known in the customary verbal shorthand as “Those Who.” Thus the assistant principal is likely to get on the walkie talkie and say, “We need a Those Who to clean up a Learner’s vomit in the Nutritional Supply Center.” That’s what the assistant principal might say if we had assistant principals, but we don’t. Now they are “Assistant Educational Leaders.” Is there some law that requires this wackiness? I NEVER QUIT CALLING THEM JANITORS, ANYWAY. DEAR I NEVER: No law, my friend, just changing standards. But we don’t think this trend will catch on. When you are stuck behind a big yellow vehicle as it stops every half mile, picking up kids in the morning, you do not think of yourself as being behind a Learner Transportation Unit. No sir. You are behind the bus. And the person at the wheel is the bus driver. Thus it has been, and thus it shall be. Harumph.

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


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LEGAL DEVELOPMENTS THE FIFTH CIRCUIT COURT OF APPEALS The Texas Education Agency Was Not Entitled To Eleventh Amendment Sovereign Immunity From The Student’s Claims Brought Under § 504 Of The Rehabilitation Act Danny’s guardian filed suit on his behalf against the school district and the Texas Education Agency (TEA) alleging violations of the Individuals with Disabilities Education Act (IDEA) and § 504 of the Rehabilitation Act of 1973. In response, TEA filed a motion requesting that the court dismiss those claims. The trial court denied the motion and TEA appealed to the Fifth Circuit Court of Appeals. The appeal was limited to the issue of whether TEA was entitled to sovereign immunity with respect to the student’s claims brought under § 504 of the Rehabilitation Act. In another recent case raising the same issue, the appeals court held that Eleventh Amendment sovereign immunity to § 504 claims is waived by any state or state agency that accepts federal funds that are “clearly and expressly” conditioned on the waiver of immunity. [See, Texas School Administrators’ Legal Digest, April 2005]. That recent holding also applied in this case. Here, § 504 conditioned the State of Texas’s receipt of federal funds on its waiver of Eleventh Amendment immunity. Because the State of Texas waived its right to immunity under the Eleventh Amendment by accepting federal money under § 504, TEA was not entitled to immunity from the § 504 claims. Danny R. v. Spring Branch ISD, Dkt. No. 02-20816 (5th Cir. 2005) (not yet reported).

Editor’s Note: The following case does not involve a school district, but is relevant to educators. The case addresses the potential liability of a supervisor for what an employee did. The case involves allegations of excessive force. In the school context, similar legal issues arise most often in the context of sexual misconduct with students, particularly when there is an effort to impose liability on the principal or superintendent for what a teacher, custodian, or other employee has done. The Police Chief And SWAT Team Commander Were Entitled To The Defense Of Qualified Immunity In The Lawsuit Stemming From The Shooting Death Of A Suspect During A Search Of The Suspect’s Home Allen Hill was a police officer with the North Richland Hills Police Department SWAT team when the team went to the home of James Davis. At the time, the SWAT team was executing a “no-knock” search and arrest warrant at the residence. Hill allegedly was the first SWAT team member to enter the home. Within the first few seconds of the search, Hill shot and killed Davis. According to Davis’s family, at the time of the shooting, Davis was in his living room, unarmed, arms

outstretched and repeating, “don’t hurt us.” The officer, in contrast, claimed that when he entered the home, Davis was at the end of a hallway pointing a gun at officers. Davis’s family filed suit under 42 U.S.C. § 1983 alleging that Hill used excessive force during the search. The family also sued Chief of Police Tom Shockley, and SWAT Team Commander J.A. Wallace claiming that those supervisors were liable under 42 U.S.C. § 1983 for the inadequate supervision and training of Hill. Davis’s family alleged that Shockley and Wallace knew prior to the shooting that (1) Hill was “prone to use excessive and/or deadly force without cause,” (2) Hill had “a reputation for displaying lewd and criminal behavior while on and off duty,” and (3) Hill’s “employment history branded and identified him as dysfunctional and unfit for police work.” Shockley and Wallace filed a motion requesting dismissal of the case prior to trial and claimed that they were entitled to the defense of qualified immunity. The trial court disagreed and held that Davis’s family produced enough evidence demonstrating that a genuine issue of material fact existed on whether Shockley and Wallace were entitled to that defense. The two supervisors then filed an interlocutory appeal (i.e., an immediate, pretrial appeal) on the issue of whether they were entitled to qualified immunity. The appeals court first considered whether it had jurisdiction over the interlocutory appeal. The court of appeals observed that it has jurisdiction over such an appeal when the appeal turns on an issue of law. In this case, the issue of whether the evidence was sufficient to demonstrate supervisory liability was a legal issue that the appeals court could review on interlocutory appeal. Here, Davis’s family sought to hold Shockley and Wallace liable under § 1983 as Hill’s supervisors. The appeals court observed that generally supervisory officials cannot be held liable under § 1983 for the actions of their subordinates. Instead, a plaintiff must show that conduct of the supervisors denied them their constitutional rights. As in this case, when a plaintiff alleges a failure to train or supervise, the plaintiff must show that (1) the supervisor either failed to supervise or train the subordinate official, (2) a causal link existed between the failure to train or supervise and the violation of the plaintiff’s rights, and (3) the failure to train or supervise amounted to deliberate indifference. To demonstrate “deliberate indifference” on the part of a supervisory official, a plaintiff must demonstrate a pattern of violations and that the inadequacy of the training was “obvious and obviously likely to result in a constitutional violation.” The appeals court next considered whether Davis’s family had produced enough evidence showing that Shockley and Wallace were deliberately indifferent to Davis’s constitutional rights. The evidence included testimony from a former SWAT team member that Hill had fired his weapon on three occasions during training exercises when the scenarios did not call for the firing of a weapon. The family produced a background investigation report indicating that Hill had a tendency to act


10 too aggressively. The record included testimony from a citizen who had been pulled over by Hill for a traffic violation. The citizen complained that Hill behaved “like a psycho” and was “going to kill somebody.” Hill also had a reputation of exposing himself, including during a team photograph. The appeals court concluded that the evidence presented in support of Davis’s claims was insufficient to support a finding of deliberate indifference on the part of Shockley and Wallace. The facts presented by Davis’s family did not demonstrate a prior pattern by Hill of violating constitutional rights by using excessive force against third parties that resulted in injury. Thus, the trial court incorrectly denied Shockley and Wallace the defense of qualified immunity. The appeals court reversed the trial court’s ruling and rendered judgment in favor of the supervisory officials. Estate of Troy Davis v. City of North Richland Hills, Dkt. No. 04-10036 (5th Cir. 2005) (not yet reported).

The Student Did Not Demonstrate An “Undue Hardship” In The Repayment Of His Student Loans Michael Hough was diagnosed with bipolar disorder in 1980. Since his diagnosis, he earned a law degree and a Masters in Business Administration. He also worked in various professional fields. Hough graduated from law school in 1995, and became licensed in 1996. While in law school, the man accumulated more than $72,000 in student loans. In February of 2002, Hough filed for voluntary Chapter 7 bankruptcy protection. He also filed a separate suit in bankruptcy court against two organizations that had guaranteed his original loans seeking to have the loans discharged. He argued that the payment of those loans posed an “undue hardship” on him because his bipolar disorder allegedly prevented him from obtaining and maintaining the gainful employment necessary to repay his loans. Following a two-day trial, in which Hough represented himself, the bankruptcy court rejected Hough’s claims and the man appealed to federal district court. The district court, likewise, ruled against Hough who then appealed to the Fifth Circuit Court of Appeals. The appeals court observed that a debtor can seek to have a loan discharged based on “undue hardship” if the debtor shows that (1) he cannot maintain a “minimal” standard of living for himself and his dependents, (2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of his student loans, and (3) he has made a good faith effort to repay the loans. Following trial, the bankruptcy court concluded that through the course of the trial, Hough had demonstrated “legal, evidentiary, and organizational skills.” As a result, Hough’s ability to represent himself during those proceedings contradicted his claim of “undue hardship.” On appeal, Hough challenged the bankruptcy court findings but failed to provide the lower court or the appeals court with a transcript of those proceedings. Without a transcript of the proceedings, the appeals court could not review the evidence to assess Hough’s arguments. Further, according to the appeals court, the failure of an appellant to provide a transcript is a proper ground for dismissal of an appeal. Because the man failed to

support his appeal with a transcript of the lower court proceedings, the appeals court affirmed the dismissal of the man’s claims. Hough v. Pennsylvania Higher Education Assistance Agency, Dkt. No. 04-10828 (5th Cir. 2005) (not yet reported).

FEDERAL DISTRICT COURTS The Trial Court Dismissed The First Amendment, Title VII, And Title IX Claims Against The University Administrators, As Well As Those Claims Against The University That Were Barred By The Statute Of Limitations Janet Schmelzer was a faculty member at Tarleton State University. In December of 1994, Schmelzer filed a lawsuit against the university and several other university employees. That suit was settled out of court in February of 1996. However, on November 18, 2002, the woman filed another suit against the university and several university administrators alleging violations of (1) the First Amendment to the United States Constitution, (2) Title VII of the Civil Rights Act of 1964, and (3) Title IX of the Education Amendments of 1972. She alleged that the defendants had engaged in a series of retaliatory acts in response to the earlier lawsuit and her speech concerning the university’s alleged discriminatory practices. In response, the university and university administrators filed a motion requesting dismissal of the lawsuit prior to trial. The motion, however, mainly concerned the individual defendants. The defendants first argued that Schmelzer’s First Amendment retaliation claims brought under 42 U.S.C. § 1983 were barred by the statute of limitations. In her suit, the woman cited numerous employment-related actions taken by the defendants beginning as early as 1996. The trial court observed that the applicable statute of limitations for § 1983 claims is two years. Schmelzer filed her second lawsuit on November 18, 2002. Thus, unless the limitations period was tolled (i.e., extended) for some reason, the woman’s § 1983 claims based on incidents occurring before November 18, 2000, were barred by the statute of limitations. The woman argued that the retaliation was “daily and continuous” and that each paycheck was a separate retaliation. The trial court observed that under the “continuing violation doctrine” a statute of limitations period can be extended when the unlawful employment practice “manifests itself over time, rather than as a series of discrete acts.” In this case, although Schmelzer made vague suggestions that the continuous violation doctrine applied, she failed to brief the issue adequately or otherwise demonstrate that the statute of limitations should have been tolled in her case. The trial court, therefore, concluded that the statute of limitations barred Schmelzer’s claims involving incidents that occurred prior to November 18, 2000. Schmelzer also alleged Title VII and Title IX claims against the individual university administrators. The trial court observed that neither Title VII nor Title IX permit suits against individuals. Since Title VII and Title IX do not provide for individual


11 liability, the individual defendants were entitled to judgment in their favor on those claims. The trial court next considered those First Amendment claims against the individual university administrators which were not barred by the statute of limitations. The administrators contended that they were entitled to qualified immunity with respect to those claims. The trial court observed that public officials performing discretionary functions enjoy immunity from suits for damages, provided that their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” In this case, Schmelzer could not establish a First Amendment violation on the part of the administrators because she did not suffer an adverse employment action. The trial court observed that adverse employment actions include transfers, discharges, demotions, refusals to hire, refusals to promote, and reprimands. Schmelzer’s allegations simply did not rise to the level of an adverse employment action. The trial court concluded that the individual defendants were entitled to qualified immunity with respect to the woman’s First Amendment claims. The trial court dismissed all of the woman’s claims against the individual university administrators as well as claims against the university arising prior to November 18, 2000. Schmelzer v. Alexander, Dkt. No. 4:03-CV-354-Y (N.D. Tex 2005) (not yet reported).

The Trial Court Dismissed The Probationary Teacher’s Title VII And State Law Claims Arising From His Nonrenewal; The Teacher Also Was Required To State With More Specificity Facts Supporting Constitutional Claims Against The Principal And Superintendent During the 2002-03 school year, Gilberto Hernandez was a first year teacher of bilingual first grade students. On March 28, 2003, the elementary school principal informed Hernandez that she planned to recommend to the school district’s board of trustees that his probationary contract not be renewed. On March 31, 2003, the board voted to terminate the probationary contract at the end of the contract term. On February 6, 2004, Herndandez filed suit against the district, the superintendent, and the elementary school principal but failed to properly serve the defendants with the lawsuit. The trial court dismissed that lawsuit “without prejudice” thus providing the man an opportunity to re-file the suit. Herndandez then filed another lawsuit against the district, the superintendent, and the principal on September 17, 2004, asserting the same claims that were alleged in the first suit. Specifically, he alleged that the defendants discriminated and retaliated against him in violation of Title VII of the Civil Rights Act of 1964, and the Fourteenth Amendment to the United States Constitution. He also alleged state law claims for wrongful termination, slander, libel, defamation of character, fraud and conspiracy, and intentional infliction of emotional distress. Hernandez claimed further that the defendants violated Texas Education Code § 21.351 and Texas Administrative Code § 89.1201 and violated the Term Contract Nonrenewal Act. In response, the defendants requested dismissal of the Title VII and state law claims. The superintendent and principal also requested that the trial court order Hernandez to state with more

specificity the Fourteenth Amendment discrimination and retaliation claims. The district first argued that the Title VII claims were barred by the statute of limitations because Hernandez failed to file suit within 90 days after he received his right to sue notice from the Equal Employment Opportunity Commission (EEOC). The trial court observed that Title VII complainants must file suit within 90 days of receiving a right to sue letter from the EEOC. The failure to file suit within the 90-day period precludes a plaintiff from recovering for any alleged discrimination that was the subject of the EEOC complaint, unless some “equitable basis” exists to extend that period. In this case, Hernandez received a right to sue notice from the EEOC on November 12, 2003. He then filed the first lawsuit on February 6, 2004, within 90 days of receiving the right to sue letter. That lawsuit was dismissed, however, and Hernandez did not file the second lawsuit until September 17, 2004, nearly ten months after he received the right to sue letter. Hernandez argued that because he filed the first lawsuit within the 90-day period, the second lawsuit also should have been considered timely. The trial court disagreed and held that the timely filing of the original Title VII lawsuit did not toll the 90-day limitation period in the second lawsuit. Because the second suit was filed nearly ten months after Hernandez received the EEOC right to sue letter, the man’s Title VII action was time-barred. The school district next argued that it was entitled to immunity with respect to Hernandez’s tort claims (i.e., claims for death, personal injuries, or property damage). The trial court observed that an independent school district enjoys sovereign immunity from suit unless it has expressly given consent to be sued. The Texas Tort Claims Act waives sovereign immunity for tort claims against school districts only in cases involving the negligent use or operation of motor vehicles. Here, none of Hernandez’s tort claims involved the use or operation of a motor vehicle. Thus, the district was entitled to immunity with respect to all of the man’s state law tort claims. The superintendent and principal also contended that the tort claims brought against them should have been dismissed pursuant to the Election of Remedies provision of the Texas Tort Claims Act. The Act provides that if a suit is filed under the Tort Claims Act against both a school district and any of its employees, “the employees shall immediately be dismissed on the filing of a motion by the governmental unit.” In this case, Hernandez brought the same tort claims against the school district and the district employees. According to the trial court, the Act thus mandated the dismissal of the state law tort claims against the superintendent and principal. Hernandez also alleged violations of the Texas Education Code and the Texas Administrative Code. In response, the defendants argued that the man failed to exhaust administrative remedies as to those claims. The trial court observed that under Education Code § 7.057, “a person may appeal in writing to the commissioner if the person is aggrieved by . . . the school laws of this state.” Further, the Texas Education Code defines “school laws of this state” as Title I and Title II of the Education Code, as well as “rules adopted under those titles.” Here, Hernandez first complained that the defendants violated Education Code § 21.351, which outlines the teacher appraisal process. That provision is found in Title I of the Education


12 Code. Hernandez, nevertheless, failed to demonstrate that he exhausted administrative remedies by filing an appeal with the Commissioner of Education concerning that claim. Hernandez, likewise, failed to exhaust his administrative remedies with respect to the alleged violation of Administrative Code § 89.1201. The trial court observed that that provision was a school law adopted under Title II of the Education Code. As a result, Hernandez was required to bring an appeal before the Commissioner concerning any alleged violation of that provision before filing suit. The trial court, therefore, dismissed “without prejudice” the man’s claims based on Education Code § 21.351 and Administrative Code § 89.1201, thus, providing him an opportunity to re-file the claims after exhausting administrative remedies. Hernandez also failed to exhaust administrative remedies with respect to his claim that the district violated the Term Contract Nonrenewal Act when it terminated his contract. In addition, the defendants claimed, and Herndandez did not dispute, that he was employed under a probationary contract. The trial court observed that the Term Contract Nonrenewal Act does not apply to probationary contracts. The trial court thus dismissed the man’s claims brought under the Term Contract Nonrenewal Act. The superintendent and principal also argued that the lawsuit did not state with enough specificity facts supporting his constitutional claims and requested that the court order Hernandez to do so. The trial court agreed and ordered Hernandez to state specifically how the superintendent and principal took actions that deprived him of a constitutionally or statutorily protected right, and state specifically how the conduct of each defendant caused his injury. The trial court dismissed the Title VII, state tort claims, and claims arising under the school laws of Texas. The court also required the man to state with more specificity the constitutional claims against the superintendent and the principal. Hernandez v. Duncanville ISD, Dkt. No. A3:04-CV2028-BH (N.D. Tex. 2005) (not yet reported).

The School District Did Not Violate The Father’s Constitutional Rights When It Banned Him From His Children’s Elementary School Campus Michael Rodgers, Sr., the father of two elementary students, sued the school district and several district employees claiming that they violated his civil rights by limiting his access and ultimately barring him from the elementary school campus. Specifically, the man raised federal constitutional claims and alleged that the district (1) violated his parental right of access to the children, (2) retaliated against him for exercising his right to free speech, and (3) discriminated against him based on his race, gender, and disability. Rodgers also asserted claims for intentional infliction of emotional distress and the violation of his parental rights under Texas law. In response to the lawsuit, the school district and its employees filed a motion requesting dismissal of the suit prior to trial. The trial court first considered Rodgers’s constitutional claims brought under 42 U.S.C. § 1983. In order to maintain a cause of action under 42 U.S.C. § 1983, Rodgers had to show that he had been deprived of a federally protected right by a

person acting under color of state law. Rodgers’s parental access claim was based upon the right to direct the education and upbringing of his children under the due process clause of the Fourteenth Amendment. According to the trial court, however, the due process clause does not create a parental right of unfettered access to school facilities. School officials have the authority to control activities on school property. That authority includes barring third parties, including parents, from access to the premises when necessary to maintain order and prevent disruptions to the educational environment. In this case, the record showed an escalating pattern by Rodgers of threatening, abusive, and disruptive behavior toward the faculty and administration at the elementary school. For example, the man had yelled at his son’s first grade teacher and had followed her into the school parking lot. On another occasion, Rodgers swatted his son and another student on the backside for misbehaving as they walked down the hallway. He also used profanity when addressing school administrators. Initially, Rodgers was restricted from entering his children’s classrooms but was allowed to eat lunch with his son and daughter in a separate area of the cafeteria. He also was told to schedule a formal conference with the principal if he wanted to communicate with any teachers. However, when Rodgers ignored those directives, he was banned from the campus. Following that action, Rodgers continued to defy school officials by entering the campus and verbally taunting teachers. Twice the police were called to remove him from school property. On one occasion, he confronted his son’s teacher during a class field trip to the zoo, shouting “No Justice, No Peace,” and using profanity in front of the students. Given the pattern of threatening, abusive, and disruptive behavior against school officials, the trial court upheld the district’s decision to ban Rodgers from the school campus. The trial court dismissed Rodgers’s claim for the violation of his parental right of access to the children at school. Rodgers also claimed that he was banned from the school campus for exercising his right to free speech under the First Amendment. The trial court observed, however, that speech is constitutionally protected only if it addresses a matter of public concern. In this case, Rodgers complained to school officials about the treatment of his son. According to the trial court, those complaints did not involve a matter of public concern and, thus, could not form the basis of a First Amendment free speech claim. Rodgers also failed to show that the district’s actions were motivated by a desire to retaliate against him. The man was banned from the school campus as a result of his threatening, abusive, and disruptive behavior. Rodgers simply did not show that the defendants were motivated by a desire to punish him for exercising his right to free speech. Rodgers also accused district officials of discriminating against him on the basis of race, gender, and disability. The man, however, failed to produce any evidence to support those claims. For example, he did not show that the defendants banned him from the school campus because he was African-American or because he suffered from an unspecified disability. Without evidence that school officials treated similarly-situated, nonminority parents differently than him, Rodgers could not establish discrimination claims under the equal protection clause of the Fourteenth Amendment. The trial court dismissed all


13 of the parent’s federal civil rights claims. The trial court declined to exercise jurisdiction over the state law claims for intentional infliction of emotional distress and the violation of his parental rights. The trial court dismissed those claims “without prejudice,” thus, allowing the father to raise those issues in state court. Rodgers v. Duncanville ISD, Dkt. No. 3-04-CV-0365-D (N.D. Tex 2005) (not yet reported).

TEXAS COURTS OF APPEAL The School Officials’ Search Of The Student And The Student’s Purse Was Based On Reasonable Suspicion And The Marijuana Found During The Search Of The Student’s Purse Was Properly Included As Evidence In The Criminal Trial For Possession Of Drugs Shannon Landry was a high school student in Klein Independent School District. One day, a school district police officer observed Shannon and another high school student returning from an off-campus excursion. Suspecting that the students had violated school rules by leaving campus without permission, the officer informed another district officer about the students. The second officer then approached Shannon and conducted a pat-down search. After the search, the second officer escorted the girl to an office to meet with the school’s associate principal. While there, the officer observed Shannon “fumble” through her purse. Because the girl’s actions caused the officer to fear that there may have been a weapon in the purse, the officer took the purse and placed it on the administrator’s desk. The administrator searched the purse for weapons and contraband and discovered marijuana. Shannon later was arrested and charged with misdemeanor possession of marijuana. Prior to trial, Shannon filed a motion requesting that the marijuana evidence be suppressed (i.e., not considered by the court). After the trial court denied the girl’s motion to suppress, she pleaded guilty and was sentenced to 18 months’ deferred adjudication and assessed a $100 fine. The student then appealed the trial court’s denial of her pretrial motion to suppress. On appeal, Shannon argued that the trial court erred when it denied her motion to suppress the marijuana evidence because the officer who discovered the marijuana did not possess the “requisite reasonable suspicion” to frisk her and seize her purse. According to the student, the administrator’s search of the purse also was not justified. The appeals court observed that in searches of students conducted by public school officials, the school officials must demonstrate a “reasonable suspicion” for the search. To determine whether the facts amount to “reasonable suspicion,” courts look at whether the search was (1) justified at its inception and (2) reasonably related in scope to the circumstances that justified the original interference. A search will be “justified at its inception” when there are reasonable grounds for suspecting that a search will reveal evidence that the student has violated, or is violating, the law or

school rules. The appeals court first considered the school district officer’s pat-down search of Shannon. The record showed that the officer was told that Shannon and another student had returned from an unauthorized trip off campus during school hours. The officer testified that in her experience, students taking such trips often are either smoking or they are doing something they should not be doing. Further, students returning from unauthorized trips off campus could return with a weapon. According to the officer, school policy required her to perform a pat-down search of truant students returning to campus. The appeals court concluded that the officer’s (1) knowledge that Shannon had left the campus without permission and (2) experience that students who leave campus might return with weapons, showed that the pat-down search was justified at its inception. The pat-down search also was reasonably related in scope to the circumstances that originally warranted the search. The officer performed the pat-down search for officer safety and limited the search to the girl’s outer person. Accordingly, the appeals court concluded that the officer established “reasonable suspicion” for the pat-down search of Shannon. The appeals court next considered whether there was reasonable suspicion to justify the search of Shannon’s purse. The record showed that Shannon had drawn attention to her purse when she began fumbling through it during her meeting with the associate principal. The officer took the purse at that time based on the officer’s fear that the girl might be in possession of a weapon. Further, when the principal searched the purse, he was aware that (1) Shannon had violated school rules because she and another student were seen returning to campus after being across the street, (2) students returning from excursions off campus during school hours could return possessing contraband or weapons, and (3) the officer had confiscated the purse for safety reasons. The search of the purse thus was justified at its inception. According to the appeals court, the search of the purse also was reasonably related in scope to the circumstances originally justifying it. The trial court properly denied the student’s motion to suppress. Landry v. The State of Texas, Dkt. No. 14-03-01254-CR (Tex. App. – Houston [14th Dist.] 2005) (not yet reported).

The School District Was Not Immune From The Breach Of Contract Lawsuit Brought By The District’s Provider Of Its Special Education Services Five Oaks Achievement Center sued Columbus Independent School District to collect payments allegedly due on a contract to provide special education services. The district filed a plea to the jurisdiction (i.e., a motion challenging the trial court’s jurisdiction over the case), claiming that it was entitled to sovereign immunity and that Five Oaks failed to exhaust administrative remedies. The trial court denied the district’s motion and the district appealed. The appeals court first considered whether the district was immune from the breach of contract suit. Governmental immunity protects school districts from lawsuits for damages absent legislative consent. Five Oaks argued that Texas Edu-


14 cation Code § 11.151(a) “clearly and unambiguously” waived the district’s immunity from suit for breach of contract. Section 11.151(a) provides that “[t]he trustees of an independent school district constitute a body corporate and in the name of the district may acquire and hold real and personal property, sue and be sued, and receive bequests and donations or other moneys or funds coming legally into their hands.” The appeals court determined that the language in Education Code § 11.151 allowing a district to “sue and be sued” constituted a clear and unambiguous waiver of the school district’s immunity from suit in a breach of contract case. The district thus was not entitled to immunity on Five Oaks’s breach of contract action. The appeals court also held that Five Oaks was not required to exhaust administrative remedies before filing the breach of contract suit. Texas law requires that a party first exhaust administrative remedies if the subject matter of the complaint against a school district concerns the administration of school laws. The district argued that because the claims involved the school laws of Texas, Five Oaks should have exhausted its administrative remedies with the Commissioner of Education. The appeals court disagreed and concluded that the case was not brought under the school laws of Texas, but under breach of contract law. As a result, Five Oaks was not required to exhaust administrative remedies before filing its breach of contract action against the district. The appeals court affirmed the trial court’s denial of the district’s plea to the jurisdiction. Columbus ISD v. Five Oaks Achievement Center, Dkt. No. 14-04-00129-CV (Tex. App. – Houston [14th Dist.] 2005) (not yet reported).

The Teacher Failed To Exhaust Administrative Remedies On His Claims That The School District Violated His Employment Contract Brian Dotson was employed as a teacher at a middle school during the 2000-01 school year. In May of 2001, Dotson filed a level I grievance with the district complaining that he had not been compensated for work he performed in an after school detention program. His supervisor later denied the grievance, as well as the man’s request for back pay. Dotson then filed a level II grievance concerning the matter. That grievance was heard by the assistant superintendent for human resources who ultimately granted the man’s request for back pay for one year. The assistant superintendent also decided that the teacher would be reassigned to another school in the district “in order to resolve the conflict existing between the grievant and campus administration.” Because Dotson believed that he was entitled to at least four years of back pay for his work in the after school program, he filed a level III grievance appealing the assistant superintendent’s decision. While the level III grievance was pending, the teacher alleged that he was denied duty-free lunches, planning periods, and reasonable access to the restrooms in retaliation for filing the grievances. Dotson then filed grievances on those issues as well. On February 14, 2002, the district’s board of trustees considered Dotson’s various grievances. After the district denied those grievances, the teacher filed an appeal with the Commis-

sioner of Education. While that appeal was pending, Dotson filed suit in state district court alleging that the district breached his employment contract by not compensating him for his work in the after school program. He claimed further that he was subjected to retaliation for filing grievances. Dotson also requested injunctive relief to prevent the district from reassigning him. After filing the state court action, he sought to voluntarily dismiss his claims before the Commissioner of Education. The Commissioner granted that request and dismissed his appeal on August 15, 2002. In response to the state court action, the school district filed a motion requesting dismissal of the suit on the grounds that Dotson failed to exhaust his administrative remedies. According to the district, because the teacher did not pursue his claims with the Commissioner, he failed to exhaust his administrative remedies. The trial court agreed and dismissed the lawsuit. On appeal, Dotson argued that he did not have to exhaust his administrative remedies. The appeals court observed that a party whose claims relate to the administration of the school laws must generally exhaust administrative remedies with the Commissioner before filing suit in state court. Under Texas Education Code § 7.057, the Commissioner is authorized to review claims involving actions or decisions by a school board that allegedly violate either the school laws of the state or a provision of a written employment contract if the violation would cause the employee to suffer monetary harm. According to the appeals court, Dotson’s claims fell within the jurisdiction of the Commissioner. The appeals court observed, however, that several exceptions exist to the rule requiring exhaustion of administrative remedies. For example, exhaustion of administrative remedies is not required if (1) the aggrieved party will suffer “irreparable harm” and the administrative agency is unable to provide relief, (2) the claims are for a violation of a constitutional or federal statutory right, (3) the cause of action involves pure questions of law and the facts are not disputed, (4) the Commissioner lacks jurisdiction over the claims, (5) the administrative agency acts without authority, or (6) the claims involve parties acting outside the scope of their employment with the school district. In this case, Dotson first claimed that he was not required to exhaust administrative remedies with the Commissioner because (1) the Commissioner did not have the power to grant his request for injunctive relief and (2) Dotson would suffer “irreparable harm” if the district reassigned him. The appeals court observed that the Commissioner had the authority to reverse the board’s decision, award back pay, and reinstate the teacher to his former position. Thus, the teacher failed to show “how the District’s actions would cause him any harm other than economic harm for which a later award of damages would provide adequate compensation.” Dotson also claimed that he was not required to exhaust administrative remedies because his claim involved the violation of his constitutional rights. Specifically, he argued that the district’s actions violated his rights under Article I, section 27 of the Texas Constitution which grants citizens the right to “apply to those invested with the powers of government for redress of grievances or other purposes.” The appeals court


15 concluded, however, that the teacher’s suit was for breach of contract and that the constitutional allegations only were “supportive” of the breach of contract claims. Consequently, the constitutional claim exception did not exempt the teacher from exhausting his administrative remedies. Because none of the exceptions to the exhaustion of administrative remedies doctrine applied to the teacher’s claims, he was required to pursue his appeal with the Commissioner before filing suit in state court. The appeals court affirmed the dismissal of the teacher’s suit for his failure to exhaust administrative remedies. Dotson v. Grand Prairie ISD, Dkt. No. 05-04-00406-CV (Tex. App. – Dallas 2005) (not yet reported).

TEXAS ATTORNEY GENERAL Under Certain Limited Circumstances, An Independent School District Is Authorized To Lease Land From A Private Entity To Develop The Land For School District Purposes And Also Lease School Land To The Private Entity The Port Neches-Groves Independent School District sought to enter into an agreement with Huntsman Petrochemicals, in which the private company would lease land to the district for a term of 50 years in exchange for $1 per year and the use of a tract of unused excess land owned by the district. The district considered using the leased land for the construction of new schools. The excess tract of land that would be leased to the company would be used for the operation of a local community soccer league. Under the agreement, the district could opt to renew the lease for another 50-year term. The Commissioner of Education recently asked the Attorney General whether this “land exchange” agreement was valid under state law. The main issues before the Attorney General were whether a school district has the authority to (1) construct buildings on leased land that is privately owned, and (2) lease excess school district land to a private entity as partial consideration for the school district leasing land from the private entity. The Attorney General observed that the Education Code authorizes a board of trustees to lease real property on the district’s behalf and to acquire and hold real property. A board may spend local school funds for purposes it determines necessary, including obtaining school sites and renting schools. According to the Attorney General, there is no statute limiting a district to constructing school buildings on land owned by the district. Article III, section 52(a) of the Texas Constitution limits the authority of a school district to use public funds to aid a private entity. To avoid violating that constitutional provision,

the district would have to (1) determine in good faith that the expenditure serves a public purpose and (2) place sufficient controls on the transaction to ensure that the public purpose is carried out. According to the Attorney General, under the agreement between the district and the company, in this case, “it appears that the [district’s] board of trustees could reasonably conclude that constructing school buildings on the leased land would serve a school district purpose.” Further, because the agreement would grant the district an exclusive right to use the buildings for 50 to 100 years, the agreement met the requirement to “place sufficient controls on the transaction to ensure that the public purpose is carried out.” The Attorney General also considered whether a school district had the authority to lease school land to a private company. Sections 11.151(c) and 11.154 of the Education Code authorize a board of trustees to dispose of real property that no longer is necessary for the operation of the district and to sell property. However, no statute expressly authorizes a board to lease school land to another entity. Texas courts and prior Attorney General opinions, nevertheless, have recognized a board’s implied authority to permit private groups to lease school property when the lease does not interfere with the property’s school purpose. Such an agreement must not (1) interfere with the property’s use for school purposes or (2) relinquish the board’s authority to control the property’s use. According to the Attorney General, the Local Government Code and the Texas Constitution impose other limitations on the authority of a district to lease land to a private company. The Local Government Code requires school districts to sell or exchange land using competitive procedures, such as providing public notice of the proposed agreement and obtaining bids. The Attorney General urged the board, in this case, to consider whether those requirements applied to the exchange of property at issue before proceeding with the transaction. In addition, a district’s agreement to permit a private entity to use its land may constitute a “thing of value” under article III, section 52(a) of the Texas Constitution. In order for the agreement to be valid under article III, section 52(a), the district must show that the agreement to lease the land would serve a public purpose. In this case, using the land for the construction of new school buildings “indicates that the lease would serve a school district purpose.” According to the Attorney General, assuming that the lease included sufficient controls to ensure that the public purpose is carried out, it is likely that the lease would comply with article III, section 52(a) of the Texas Constitution. However, whether the lease in this case complied with the limitations detailed by the Attorney General involved questions of fact and contract interpretation that ultimately had to be determined by the district’s board of trustees. GA-0321 (2005).


16

SPECIAL EDUCATION HEARINGS The School’s IEP, BIP, And Evaluation Were Appropriate; The School District Properly Placed The Student In The DAEP, But Failed To Deliver Appropriate Services There; The Hearing Officer Limited The Role Of The Parent’s Lay Advocate Daylan was a sixth grade student who was diagnosed with attention deficit disorder (ADD), inattentive type. In November of 2004, an Admission, Review, and Dismissal (ARD) Committee determined that Daylan met special education eligibility as a child with an “other health impairment.” The student’s individualized education plan (IEP) included a behavior intervention plan (BIP) with positive intervention strategies, goals and objectives for study skills, classroom modifications, and special education support through content mastery for at least 20 minutes per week. During the 2004-05 school year, Daylan received numerous disciplinary referrals. The behaviors included making inappropriate comments, writing on another student’s shirt, using profane language, being disrespectful, striking another student with a pencil, spitting paper at another student, hitting a student, refusing to comply with teacher instructions, and fighting in the cafeteria. On February 2, 2005, Daylan received his tenth disciplinary referral for fighting with another student. As a result, Daylan was assigned to the disciplinary alternative education program (DAEP) for 30 days for persistent misbehavior. A disciplinary hearing was held and the principal concluded that Daylan had engaged in persistent misbehavior warranting his assignment in the DAEP. Before Daylan was placed in the DAEP, the ARD Committee met to conduct a manifestation determination review of his disciplinary infractions. The ARD Committee discussed each of the required manifestation determination issues and determined that Daylan’s behavior was not a manifestation of his disability. During the manifestation determination review, the ARD Committee reviewed all of the boy’s behavioral referrals and determined that the behaviors were planned and that Daylan targeted specific students. The ARD Committee also determined that Daylan’s IEP and BIP could be implemented at the DAEP. As a result, the boy’s placement was changed to the DAEP on February 7, 2005. Following that decision, the mother requested a due process hearing raising numerous challenges to the district’s placement of Daylan in the DAEP. Under a stay-put order issued by the hearing officer, the boy was returned to his original placement on February 18, 2005. During a pre-hearing conference, the mother was assisted by a “lay advocate,” who happened to be a member of the school district’s board of trustees. Following that conference, the district filed a motion requesting that the hearing officer disqualify the board member as the woman’s advocate. The hearing officer granted that motion. The hearing officer ruled that the advocate could accompany and assist the mother during the hearing, but that she could not present evidence, cross examine witnesses, or

in any manner manage the conduct of the litigation or proceedings on behalf of the mother. The hearing officer determined that there is no right to non-attorney representation in special education hearings. A party may be accompanied and advised by a person with specialized training and knowledge. However, a lay advocate may not present evidence, cross examine witnesses, or manage the proceedings on behalf of the party. According to the hearing officer, those actions would constitute the unauthorized practice of law. Daylan’s mother first complained that her son’s IEP was inappropriate. The hearing officer disagreed. The IEP developed by the ARD Committee was individualized based on the boy’s assessments and performance. The boy received instruction in the general education curriculum with classroom modifications that were designed to address the impact that Daylan’s ADD had on his success in the classroom. He also was provided content mastery support. According to the hearing officer, placement in the general education setting with modifications and content mastery support was the least restrictive environment for the student. The record showed further that Daylan received passing grades in all of his classes during the Fall of 2004, and that his behaviors regarding inattention appeared to improve. The hearing officer thus concluded that Daylan’s IEP developed in the Fall of 2004, was reasonably calculated to provide the student with meaningful educational benefit. The mother also complained that the district failed to provide Daylan with a BIP. That contention, however, was not supported by the evidence. The ARD Committee that developed the boy’s IEP reviewed a functional behavioral assessment and developed a specific BIP for him which addressed targeted behaviors and contained positive intervention strategies. The record showed that the district properly developed a BIP for Daylan as part of this IEP. The next issue before the hearing officer was whether the ARD Committee properly determined that Daylan’s behavior was not a manifestation of his disability and placed him in the DAEP. The hearing officer already had determined that Daylan’s IEP and BIP were appropriate at the time of the manifestation determination review. In addition, the evidence established that the ARD Committee properly concluded that the student’s disability did not impair his ability to (1) understand the impact and consequences of his behavior or (2) control the behavior that was subject to the disciplinary action. The ARD Committee “took great care” in evaluating Daylan’s behavior and analyzing the impact that his ADD had on his ability to control that behavior. Two disciplinary referrals for spinning paper and failing to bring work to class, arguably involved behaviors related to his impulsivity and/or inattention. Nevertheless, the majority of his disciplinary infractions involved deliberate and planned behavior aimed at specific students. The ARD Committee properly determined that Daylan’s behavior was not a manifestation of his disability. The mother also complained that the teacher at the DAEP was not properly certified. It was undisputed that the DAEP teacher held a probationary certification in special education. The hearing officer observed that IDEA regulations require personnel providing special education and related services to meet appropriate state qualification standards. Under TEA


17 regulations, special education personnel must be certified, endorsed or licensed as appropriate for their area of assignment. In this case, the DAEP teacher held a valid probationary certification in special education and, as a result, was appropriately certified to teach Daylan. The hearing officer next considered whether Daylan had been provided a free appropriate public education (FAPE) while assigned to the DAEP. The hearing officer observed that if an ARD Committee determines that a child’s behavior is not a manifestation of his disability and places the child in a disciplinary placement, the district must provide services to the extent necessary to enable the child to progress appropriately in the general curriculum and advance toward achieving the goals set out in the child’s IEP. In this case, the record showed that Daylan was placed in the DAEP on February 7, 2005, and remained there for ten school days. The boy’s DAEP teacher testified that he did not receive the boy’s IEP until after Daylan had returned to his stay-put placement and, therefore, did not have an opportunity to implement the IEP. Further, none of Daylan’s teachers forwarded work to the DAEP instructor. The DAEP teacher testified that he provided Daylan with second grade to fourth grade level work because that was what he provided the other students in his classroom. The man also admitted that the work he provided to the student was not consistent with the level of work required by his regular education teachers. In addition, the DAEP teacher was not aware of the boy’s disability, of his need for special education support, or of the grade level at which he received instruction during the entire time Daylan was in the DAEP. The hearing officer concluded that no portion of the boy’s IEP was implemented in the DAEP and, as a result, the district denied the boy FAPE during that time. As relief, the mother requested an independent education evaluation (IEE) at the district’s expense. When a parent requests an IEE at public expense, the district may initiate a hearing to show that its evaluation was appropriate. In this case, the district filed a counter-claim to the mother’s due process hearing request and claimed that its evaluation of Daylan was appropriate. According to the hearing officer, the district presented evidence that its assessment of Daylan, indeed, was appropriate. The hearing officer denied the mother’s request for an IEE at public expense. Nevertheless, the boy was entitled to compensatory services for the district’s failure to provide him FAPE during the ten days that he was placed at the DAEP. Daylan J-H v. Lancaster ISD, Dkt. No. 172-SE-0205 (March 28, 2005, Hearing Officer Sharon M. Ramage).

The School District’s Evaluations And Assessments Of The Special Education Student Were Appropriate And The Student’s IEP Provided Him With FAPE Mark was a student diagnosed with a visual impairment, cerebral palsy, a speech impairment, and mental retardation. In June of 2003, an independent evaluator completed a full individual evaluation (FIE) of Mark. The FIE concluded that Mark met special education eligibility criteria as a student with mental retardation, a visual impairment, and a speech impairment. He

also qualified as “other health impaired” based on attention deficit hyperactivity disorder (ADHD), a seizure disorder, and an orthopedic impairment. Mark’s father requested a due process hearing in September of 2004, complaining that the district failed to (1) provide the father with materials relevant to the district’s ARD Committee meetings and assessments of the student, (2) provide Mark with an appropriate educational placement, and (3) perform evaluations properly. The hearing officer ruled in favor of the district on each of the father’s claims. First, the mother testified at the due process hearing that they had received copies of all documents and ARD Committee tapes and materials that they had requested. Second, the IEP developed by the district addressed all of Mark’s educational needs and provided him an opportunity to make educational progress. The record showed further that the boy, in fact, had made educational progress. Finally, the hearing officer concluded that Mark’s evaluations and assessments were appropriate. For example, the FIE included a review of appropriate assessment data, an intellectual evaluation, an education performance evaluation, as well as parent and teacher interviews. The boy’s testing was administered appropriately for a child with impaired sensory, manual, and oral skills. In addition, assessments were conducted by trained personnel and included input from the boy’s educators, evaluators, and parents. Accordingly, the hearing officer ruled in favor of the district. Mark S. v. Hooks ISD, Dkt. No. 021-SE-0904 (April 4, 2004, Hearing Officer Lucius D. Bunton).

The Student’s Educational Program And Placement Were Appropriate; The School District Provided The Parents With Periodic Reports Concerning The Student’s Progress; Any Delay In Holding An ARD Committee Meeting May Have Been A Procedural Violation Of IDEA But Did Not Result In Any Harm To The Student Trenton was a 16-year-old student eligible for special education services and diagnosed with mental retardation, a speech impairment, attention deficit hyperactivity disorder (ADHD), and pervasive developmental disorder (PDD). Trenton’s class schedule consisted of two periods in “local curriculum” classes for social studies and math, a special education program known as “ALE” for additional classes, a physical education class, and an elective. The local curriculum was a specially designed curriculum for students performing at the kindergarten through sixth grade level. The boy’s instruction in the ALE classroom included the special education curriculum for math, reading, applications science, and social studies. During the Fall of 2004, Trenton’s special education teacher concluded that some of the boy’s IEP goals were not appropriate in that they were too broadly worded and not generalized for real life. She felt that the student’s IEP needed to be revised. At the same time, the parents requested an ARD meeting because they wanted to add a BIP as a component of their son’s IEP for high school. As a result, an ARD Committee meeting was held on August 27, 2004, and was scheduled to last one hour. The parents were surprised to learn of the teacher’s concerns about Trenton’s IEP. In addition, a transportation issue arose


18 at the meeting that needed to be addressed as well. The boy’s parents only had scheduled one hour for the meeting and were unable to stay for the entire meeting. As a result, they did not sign their agreement with the decisions made at the meeting. The parties agreed to reconvene the ARD, but because of a number of problems in rescheduling the ARD Committee meeting, it was not reconvened within ten days. Meanwhile, the relationship between school personnel and the parents began to deteriorate. The parents had many questions and concerns about Trenton’s educational program and his progress. In addition, they submitted numerous requests for information, explanations, and clarifications on a number of issues. The parents also refused to proceed to an ARD Committee meeting until all of the questions and concerns were answered. Consequently, the ARD Committee did not reconvene until December 14, 2004. The December of 2004 ARD Committee meeting was considered Trenton’s annual review. Members of the ARD Committee included his parents, a regular education teacher, a special education teacher, a person with supervisory responsibility, his speech therapist, the campus principal, and an assessment representative. The parents also provided an independent evaluation report that had been funded by the district. The Committee agreed with the parents that Trenton needed a BIP. It also placed Trenton in a social studies class for the spring semester (1) to address the parents’ concerns that their son needed to practice reading and writing skills and (2) to provide him more interaction with non-disabled peers. The parents filed a request for a due process hearing in January of 2005, raising numerous issues concerning the August and December 2004 ARD Committee meetings, Trenton’s educational placement, and information provided by the school district concerning the boy’s progress toward IEP goals and objectives. First, the parents complained that the district failed to provide them with sufficient information to keep them informed about Trenton’s progress. The record showed, however, that the district made an extraordinary effort to communicate with the parents and provide responses and information to address their concerns and questions. The district provided the parents with IEP report cards. The parties exchanged and compiled an extensive set of communications consisting of e-mails, daily communication logs, phone messages, notes, letters, and special education data collection records. Although IDEA requires parental participation and involvement, it does not require the school district to provide parents “with information ad infinitum to the extent provided in this case.” The school district, in this case, provided the parents with more than sufficient information about their son’s progress and performance. With respect to Trenton’s IEP, the parents complained that it did not include Trenton’s present levels of performance or measurable goals and objectives. According to the hearing officer, however, Trenton’s IEP included statements of present levels of competency. In some parts of the IEP, acronyms were used and test scores were referred to that were not explained or defined. The hearing officer, nevertheless, concluded that the IEP’s description of the boy’s present levels of performance were sufficient under IDEA. Further, even if the goals and

objectives could have been “more artfully drafted,” they did not violate IDEA’s standards. In addition, the parents complained that they were not provided with periodic reports of how their child was progressing towards meeting the IEP goals and objectives. To comply with that requirement, the district provided the parents with periodic IEP report cards. The record showed that there was some confusion and misunderstanding about the format of the first IEP report card. For example, it omitted teacher comments that were required by Trenton’s IEP. Following the confusion about the first IEP report card, the district provided a credible explanation for the omission and offered clarification on that issue. Furthermore, the district made genuine efforts to address parental concerns and questions and to provide ongoing information about Trenton’s progress and activity. The parents also complained that the district failed to reconvene the August 2004 ARD meeting within the required tenday period. The evidence established that the district had made numerous efforts to reschedule the ARD Committee meeting timely. However, scheduling conflicts by both parties, as well as other issues, interfered with the scheduling of the ARD meeting. The hearing officer concluded, however, that even if the failure to reconvene the meeting within ten days constituted a procedural error under IDEA, the parents failed to show that the error resulted in substantive harm to Trenton. The record showed further that the parties eventually overcame their differences and convened another ARD Committee meeting by the end of the semester. The hearing officer also rejected the parents’ complaint that the December 2004 ARD Committee meeting was not constituted properly. The record showed that the ARD meeting included the parents, the campus principal, a regular education teacher, a special education teacher, the boy’s speech therapist, a case manager, and an assessment representative. According to the hearing officer, the December 2004 ARD Committee complied with IDEA. The hearing officer also ruled against the parents on their claims that instructional materials and placement in a social studies class were not age appropriate. The record showed that the materials used in Trenton’s social studies class were age appropriate with a focus on real world concepts and real life economic situations presented at an appropriate reading level. The use of games and real life manipulative approaches worked for Trenton. The parents simply did not meet their burden of proof to show that their son’s placement in the social studies class and the materials provided to him were inappropriate. The hearing officer ruled in favor of the district on all of the issues raised by the parents. Trenton D. v. Northside ISD, Dkt. No. 140-SE-0105 (April 5, 2005, Hearing Officer Ann Vevier Lockwood). The Student Did Not Meet Eligibility Criteria As A Student With An Emotional Disturbance; The School District Was Allowed To Use In-School Suspension As A Disciplinary Tool For Her Kayla was a 13-year-old student diagnosed with attention deficit hyperactivity disorder (ADHD). In the Fall of 2003, Kayla’s psychologist diagnosed her with Generalized Anxiety


19 Disorder. At the time, the girl had been experiencing problems with sleeplessness, headaches, stomach aches, and listlessness. Kayla’s pediatrician later prepared an “other health impairment” (OHI) eligibility report for the parents based on the diagnoses of ADHD and Generalized Anxiety Disorder. The parents submitted that report to the district in April of 2004, to support their request for special education services. As a result, the district immediately began an evaluation of Kayla, including an FIE dated April 30, 2004. The FIE concluded that Kayla did not meet eligibility criteria as a student with an emotional disturbance (ED). She did meet eligibility criteria under the OHI classification due to characteristics of ADHD that interfered with her ability to receive an educational benefit. An ARD Committee met on May 12, 2004, to initiate special education services and develop an IEP for Kayla. The district also completed a functional behavioral assessment and provided the girl with a BIP that targeted the behaviors of staying on task, completing work, and getting to class on time. The girl remained in the general education setting with modifications. The ARD Committee also determined that Kayla was capable of following the district’s student code of conduct with modifications. Kayla entered the eighth grade during the Fall of 2004. At the beginning of the school year, Kayla received several disciplinary referrals for minor infractions. On October 13, 2004, however, Kayla engaged in a series of disciplinary incidents that led to her placement in in-school suspension (ISS). For example, in journalism class she refused to stand to recite the Pledge of Allegiance. She later disobeyed the teacher’s instruction to use her worktable for her project and, instead, walked directly to the teacher’s desk and put her notebook on top of items on the teacher’s desk. Kayla also refused to be quiet during a guest speaker’s presentation to the class. She further refused to sign the teacher’s discipline book when asked to do so. Later, during her science class, she did not take her science book. While the teacher was talking to another student about his science book, she yelled, “She hates you, too,” and began laughing uncontrollably. When the science teacher could not get Kayla to calm down, the teacher sent the girl to the content mastery class. Instead of going to that class, however, Kayla went to her locker and sat down in front of the locker with all of her belongings spread around her. She was later sent to the vice principal’s office. The vice principal notified Kayla and her parents that she was being referred to ISS for three days. The parents strongly disagreed with the district’s decision to place the girl in ISS and requested a manifestation determination review. The district denied that request. Following those disciplinary incidents, Kayla was interviewed by a psychiatrist. The psychiatrist conducted a clinical interview with Kayla and gathered information from Kayla’s parents. The psychiatrist concluded that Kayla suffered from ADHD, a General Anxiety Disorder, as well as a Depressive Disorder, not otherwise specified. Among other things, the psychiatrist recommended that ISS not be used in a punitive manner in dealing with Kayla. The psychiatrist submitted several letters to the district that included those conclusions and recommendations. In response, the district wanted additional information from the psychiatrist. Attempts by the district to

talk to the woman on the phone or have her attend an ARD Committee meeting, however, went unanswered. At the parents’ request, the district convened an ARD Committee meeting to consider whether Kayla should have been classified as ED. The parents’ request was based on letters by the psychiatrist dated October 14, and October 18, 2004. However, neither of the letters discussed any evaluations. The district, therefore, offered to conduct additional testing, either by district personnel or through independent providers, but the parents declined. On October 27, 2004, the ARD Committee again reconvened to review Kayla’s BIP. Among the consequences reasonably calculated to improve the girl’s behavior were office referrals, ISS, and suspension. The parents disagreed with the use of ISS. As a result, the district agreed that if the decision was made to place Kayla in ISS, the parents would be notified. Further, if the parents chose to keep Kayla at home during the ISS period, it would be considered ISS and not a suspension. Meanwhile, the parents requested a due process hearing. Pending the due process hearing, the relationship between Kayla’s parents and school personnel “completely broke down.” In January of 2005, the parties agreed to transfer Kayla to another school within the district. Following the transfer, Kayla’s grades remained good and she did not receive nearly the same amount of disciplinary reports as at the previous school. The main issue in the due process proceeding was whether Kayla should have been classified as ED. The district demonstrated that it conducted an appropriate FIE of Kayla in April of 2004. The FIE used a variety of assessment tools and strategies, gathered relevant functional and developmental information, used standardized tests, as well as evaluation material tailored to assess specific areas of the girl’s educational needs. The hearing officer concluded that the district appropriately relied upon the results of the FIE when it developed Kayla’s IEP and BIP in May of 2004. The parents also complained that the district improperly used ISS as a disciplinary measure for Kayla. According to the hearing officer, however, “[n]othing in IDEA prohibits a school from administering discipline to a student with a disability – even if the offending behavior arises from the student’s disability – so long as the discipline does not change the student’s placement.” While the parents strongly disagreed with the district’s use of ISS, the district was authorized to use that discipline tool in handling Kayla. The parents also disagreed with the district’s failure to implement the psychiatrist’s findings and recommendations concerning Kayla’s ED classification and use of ISS. The hearing officer observed, however, that the psychiatrist’s conclusions rested solely on an interview with the student. The school properly asked the psychiatrist for additional information to support or explain her diagnoses, but received no response. The district then responded appropriately by considering the psychiatrist’s letters and offering to conduct further testing of Kayla, which the parents refused. Under the circumstances, the parents could not demonstrate that Kayla should have been classified as ED. The hearing officer ruled in favor of the district on each of the parents’ claims. Kayla T. v. Northside ISD, Dkt. No. 061-SE-1004 (April 11, 2005, Hearing Officer Luecretia Dillard).


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CONFERENCE / Q & A SESSION FOR PRINCIPALS June 7 - 8, 2005 in Austin Register Now! Registrations are now being accepted for the 18th Annual TASSP/Legal Digest Conference on Education Law for Principals, to be held on Tuesday, June 7, 2005, at the Austin Convention Center. You can register by mailing in the form enclosed in this issue of the Legal Digest, by calling us at 940-382-7212, by faxing the form to us at 940-383-3809, or by registering directly through our website: www.legaldigest.com.. For more information email us at: info@legaldigest.com. In addition, TASSP and the Legal Digest will host a question and answer session on the following day, June 8th, as part of the TASSP Summer Workshop. This is your opportunity to present questions directly to a panel of school law attorneys. For information and registration, go to www.TASSP.org and click on “Summer Workshop 2005” then “Pre-Conferences.” You will need to register for this workshop through TASSP. The Q & A session will be held at the Austin Convention Center from 8:30 to 12:00 noon.

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