All posts by Jim Walsh

Dawg Bones

DEAR DAWG:  WHAT THE HECK IS A SCINTILLA?  IS IT ON THE ENDANGERED SPECIES LIST?

Every time I hear the word “scintilla” I envision a small fur bearing mammal.  But you will not hear this word tossed around by nature lovers or protectors of endangered species.  Nope. This is a lawyer’s word, as in “you have not produced even a SCINTILLA of evidence!”

It comes up in the context of teacher nonrenewal when teachers appeal to T.E.A.  The Agency does not conduct a new hearing. It reviews the record, and is required to uphold the board’s decision if it meets the “substantial evidence” standard. Don’t let that word “substantial” fool you.  You don’t need a whole lot of evidence.  A scintilla will do.  A scintilla is a tiny little bit, but in a nonrenewal appeal, it’s enough.

That’s not the case when the board hears the case. There, the administration has to prove its case by a preponderance of the evidence. So said the Commissioner in Whitaker v. Moses and his decision was ultimately affirmed by the Court of Appeals at 40 S.W.3d 176 (Tex. App. Texarkana 2001).

So if the district is pursuing a nonrenewal it needs to prove its case before the board, and then hope the Commissioner can find that scintilla hiding in the record.

DAWG BONE: HAVE MORE THAN A SCINTILLA OF FUN THIS WEEKEND.

 

 

Dawg Bones

DON’T LEAVE OUT THE KEY WORD IN A PROPOSED NONRENEWAL!

We sometimes read news stories from other states about how difficult it is to fire an ineffective teacher.  In fact, a court in California has held that the state has provided such an excessive level of due process that it is virtually impossible to remove a bad teacher from the classroom, thus depriving students of their right to a good education.

Things are different here.  In Texas, a teacher’s contract can be “nonrenewed” at the end of its term as long as the school district follows procedure, meets timelines, and produces a bit of evidence to satisfy the legal standard. That legal standard is not too challenging.

When teacher nonrenewals are overturned by T.E.A. or a court it is usually because of a procedural error by the district. It is rarely because the district failed to satisfy the legal standard.  The legal standard is simply that the nonrenewal is based on one of the reasons set out in district policy. Want to know what those reasons are? Check out your district’s Policy DFBB (Local).  For over 90% of the districts in Texas, that’s where you will find a list of over 30 possible reasons for nonrenewal.

Sometimes the procedural error by the district involves leaving out a single word in the notice that is given to the teacher. That word is “PROPOSED.”  The board is supposed to give the teacher notice of a PROPOSED nonrenewal.  Then the teacher has the right to request a hearing.  If the hearing is requested, the board will act again, after the hearing, to actually renew or nonrenew the contract. If the teacher receives notice of PROPOSED nonrenewal and does not request a hearing, the board still has to take another action.  They have to take formal action to nonrenew the contract.

In other words, for term contracts, this is a two-step process.  The board PROPOSES nonrenewal; and then the board actually nonrenews the contract.

In Castaneda v. Lasara ISD (Dkt. No. 081-R1-502, T.E.A. 2002) the original notice to the teacher left out the crucial word.  On appeal, the commissioner ordered the district to reinstate the teacher with back pay.  Small mistake—big difference.

It’s a good idea to consult with your school’s attorney before proceeding with a term contract nonrenewal.  Getting the right words in the notice to the teacher is just one of the procedural hurdles. There are others. Furthermore, your attorney can help you decide if you have sufficient evidence to satisfy the legal standard.

DAWG BONE: NONRENEWAL SEASON IS HERE!  DOT YOUR I’S AND CROSS YOUR T’S. 

 

 

Dawg Bones

GET READY TO ADDRESS PROBATIONARY CONTRACTS

It’s the time of year when personnel decisions are made.  Chapter 21 of the Education Code imposes a timeline for the renewal or nonrenewal of probationary and term contracts, and that time draws nigh.  So today and tomorrow we will offer a few reminders about this process.

The employment of a probationary teacher can be terminated as of the end of the teacher’s contract if the school board determines that this action is in the best interests of the district.  The process is pretty simple.  Normally, the principal and superintendent go to the board with a recommendation for termination and the board approves it.  Of course the board does not have to approve such a recommendation, but in most instances, it will do so. The teacher is then given written notice of this decision. The teacher is not entitled to a “nonrenewal hearing” like her counterpart down the hall who has a term contract. In fact, the law does not even require an explanation.

However, principals and superintendents should tread carefully here.  The probationary teacher is not without legal recourse.  The teacher can file a grievance internally, and can pursue legal action in court alleging that the termination of contract was based on an improper motive.  If the teacher pursues legal action, the time will come when the principal and superintendent will have to disclose why they believe that the termination was in the best interests of the school district.

Furthermore, even though there is no law requiring that the teacher be told the reasons for the termination, most administrators do have that conversation with the teacher.  In fact, that conversation, sometimes referred to as “the talk” usually comes before the matter goes to the board so that the teacher will have the option of making a graceful exit from the district via resignation.

We encourage you to talk to your school lawyer about any recommendation of termination of a probationary contract.  Your lawyer can provide a good sounding board to determine if the proposed termination is based on job-related, non-discriminatory and non-retaliatory reasons.  Your lawyer can also guide you through “the talk” so as to avoid any claim of harassment, duress or coercion.

DAWG BONE: DON’T GET A FALSE SENSE OF SECURITY IN DEALING WITH PROBATIONARY TEACHERS.  

 

 

Dawg Bones

CAN THE KIDS SUE BECAUSE YOU FIRED THE COACH?

According to the 9th Circuit Court of Appeals, softball players in a California school district can sue the school district over the firing of their softball coach.  The suit alleges that the firing violated the students’ rights under Title IX. They alleged that the firing was an act of retaliation, punishing the students because their coach advocated on their behalf.

The legal issue here is what the lawyers call “standing.”  A person cannot sue another person just because. They have to allege facts to establish that they suffered an injury of some sort.  This case breaks new ground by holding that the players on a high school team have legal “standing” to sue under Title IX when their coach is fired.  “Standing” would not be an issue if the coach had filed the suit. He lost his job. That’s an injury sufficient to get him in the courthouse door.  But the kids?????

Here’s how the court put it:

Coach Martinez gave softball players extra practice time and individualized attention, persuaded volunteer coaches to help with specialized skills, and arranged for the team to play in tournaments attended by college recruiters. The softball team was stronger with Coach Martinez than without him.  After Coach Martinez was fired, [the district] stripped the softball team of its voluntary assistant coaches, canceled the team’s 2007 awards banquet, and forbade the team from participating in a Las Vegas tournament attended by college recruiters. The district court found these injuries, among others, sufficient to confer standing on Plaintiffs. We agree.

This case has drawn a lot of attention from advocacy groups interested in Title IX. Moreover, the U.S. Department of Justice joined in the suit against the district. The court held that the district violated Title IX in a number of ways, but the biggest news here is the ruling that the students can claim “retaliation” based on the termination of their coach.

The case is Ollier v. Sweetwater Union High School District, decided by the 9th Circuit Court of Appeals on September 19, 2014.  It can be found at 768 F.3d 843.

DAWG BONE: TITLE IX INVOLVES MORE THAN A NICE SOFTBALL FIELD. 

 

 

Dawg Bones

ANOTHER JOHN DOE LAWSUIT. THIS ONE DID NOT PAN OUT FOR THE DOE FAMILY.

According to the court’s opinion in Doe v. Dixon, teacher’s aide Kristy Ray Dixon plead guilty to a charge of Improper Relationship Between Educator and Student, a second degree felony.  She was given a ten-year deferred adjudication sentence based on her sexual interaction with a 14-year old boy in Blum ISD.

But she was not held liable in the civil suit filed by the boy’s mother.  Nor were any of the other parties held liable.

Remember the O.J. case?  He was acquitted in the criminal case, but lost in the civil court.  This case went just the opposite way.

The mother filed suit against the teacher’s aide, the principal who supervised her, and the district.  In the suit, the mother alleged claims under both federal and state law.  The federal claim against the principal was dismissed because the facts alleged in the Complaint did not reach the level of “deliberate indifference.” A principal is not personally liable simply because a person he supervises acts badly. There has to be evidence that the principal knew what was happening and responded with deliberate indifference. That was lacking here.

The federal claim against the BISD was also tossed out.   The district is not liable simply because one of its employees acts badly. There has to be evidence that the policy, custom or practice of the district was the cause of the injury.  That was lacking here also.

But what about Ms. Dixon? Why is she not liable for her sexual activities with a 14-year old?

The suit sought to impose liability against Dixon in both her “official” and her “individual” capacities. But she can be liable in the “official” capacity only for what she does under “color of” (i.e., authority) of the district.  Messing around with a 14-year old boy was not part of her job description, and was not authorized by the district.  Therefore, she was not “acting under color of law” when she did this.

So you might assume that the indiscreet teacher’s aide would be liable in her individual capacity. But no.  These claims alleged assault and battery, and the intentional infliction of emotional distress.  These are state law claims.  Under state law, a plaintiff must give notice to a school district professional employee prior to filing suit against that employee. That didn’t happen here. Also, the Texas Civil Practices and Remedies Code specifies that if you sue a school district you are automatically barred from any suit or recovery by the plaintiff against any individual employee regarding the same subject matter. Thus, since she had sued Blum ISD, she could not simultaneously pursue litigation against the principal or the teacher’s aide.

So Ms. Dixon was not held liable by the court for any civil wrong—neither a constitutional violation, nor an assault, nor an intentional infliction of emotional distress.  She lost her job and got a lengthy “deferred adjudication” but all things considered, it could have been a lot worse for her.

If Ms. Doe finds that frustrating, just imagine how she will feel when she gets the bill for the principal’s attorneys’ fees.  The principal had another defense available to him in connection with the “intentional infliction of emotional distress” claim.  He was entitled to “qualified immunity” on that claim.  He was a professional employee, acting within the scope of his employment, exercising judgment or discretion and not using force in connection with student discipline. Therefore, he was entitled to immunity from this suit, and John Doe’s mother is responsible for his costs and attorneys’ fees.

So it goes.  The case was decided by Walter Smith, federal judge for the Western District of Texas on February 11, 2015.  It can be found at 2015 WL 589632.

DAWG BONE: CRIMINAL LIABILITY DOES NOT ALWAYS LEAD TO CIVIL LIABILITY.

 

 

Dawg Bones

HOW SCHOOL ADMINISTRATION IS LIKE BASEBALL

You may or may not have noticed, but the Dawg tries to be somewhat lighthearted, if not downright humorous, in this space on Fridays. We are aware that much (all?) of the popularity of the Law Dawg column over the years was based on the humor content.  Here in the EdLawDaily we cannot possibly be funny every day, but we are trying to maintain a 20% quota for Law Dawg style humor by reserving Friday for amusing developments.

So with that in mind, let me just make note of the fact that the Chicago Cubs will play their first game of the season this Sunday night.  The Cubs are full of hope this year. They have a new manager (Joe Maddon), some promising new players (including John Lester), Wrigley Field is being renovated and they start the season on Easter!  Time for a RESURRECTION!

I don’t look for that to happen.  Jesus spent only three days in the tomb, but the Cubs have been there for 114 years.  Someone once quipped about the Cubs, “Anyone can have a bad century.” But the Cubs are now past the century mark and still losing.  As someone who grew up on the South Side of Chicago—White Sox territory—I take some pleasure in pointing these things out.

The good news, of course, is that baseball is back.  Of all our athletic entertainments, baseball is the most like life…or like school administration for that matter.

How is baseball like school administration you ask?  Let me count the ways.

First, it is daily.  As a school administrator you do not get to practice for six days and play on one.  No—you have to show up and play every day. Have you ever had a practice day of school?  No, you haven’t. Real kids are there every day and you are expected to be at your best every day.  Like in baseball.

Baseball is like school administration because baseball is the only game in which the defense controls the ball.  Have you ever felt really in control of your life? Have you ever felt totally on top of everything in your school district, in control of all events as you survey your domain?  If so, I suggest that you are delusional. You are not in control of Life, nor are you in control of the many students, parents, taxpayers, colleagues and teachers you will encounter today. You are not in control of the budget, the law, the curriculum or just about anything else.  You don’t have the ball—someone else does.  Just like in baseball.

Baseball is like school administration because you do not improve your performance simply by trying harder.  You have to play smart.  You have to be responsive to situations. All you can really do is prepare and make yourself ready for whatever comes.  Basketball and football are adrenaline games—trying harder improves performance.  But baseball is like golf or tennis. Gripping the bat, club or racket tighter will not improve your game.  You can’t play the game with clenched teeth and white knuckles. Being an educator is like that too.

Baseball is like school administration because every player has to be a good team player, but has to be able to handle the solo spotlight also.  When the ball is hit to you, you can’t just pass it to someone else.  When it’s your turn at bat, there is no one who can help you.  (This is why the Designated Hitter rule is an abomination and spawn of the devil).  So you have to be able to perform alone—but you are a member of a team as well.  Kind of like being a principal or assistant principal.

Baseball is like school administration because you have to have a variety of skills.   You can’t be successful with just a single skill, as you can in many other sports.  You have to be able to play the entire game—hitting, fielding, throwing, running--with some degree of skill.  Life is like this.  Schools are like this.  Educators need to be able to think, to learn, to create, to perform, to speak, to write, to relate.

Baseball is like school administration because the whole idea is to get home safely.  The batter approaches the plate in a state of alert focus, well prepared for whatever may come his way.  If he meets with success, he begins his heroic journey around the bases, moving from station to station, avoiding danger with the aid of his teammates until he reaches the safe port of home plate.

Think on these things and have a Good Friday.

DAWG BONE: MAY ALL YOUR FRIDAYS BE GOOD.

 

 

Dawg Bones

CAN THE SCHOOL BE LIABLE FOR WHAT IT “SHOULD HAVE” KNOWN?

The recent 5th Circuit decision is “unpublished” but it nevertheless sends a strong message about what it takes for a school district to be held liable in a student-to-student sexual harassment case.  The court tells us that schools are liable under Title IX only if they “had actual knowledge of harassment; constructive notice will not suffice.”  Note: the term “constructive notice” is legalese for “you shoulda known.”

This comes from Kelly v. Allen ISD, decided by the 5th Circuit on February 19, 2015.  In the suit, the parents allege that their son was bullied and sexually harassed by another middle school student. The parent had the burden of proving that 1) the district had actual knowledge of the harassment; 2) the harasser was under the district’s control; 3) the harassment was based on the victim’s sex; 4) the harassment was so severe, pervasive and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit; and 5) the district was deliberately indifferent.

The school district asserted that the case fell short on several of those five elements, but exercising judicial economy, the 5th Circuit just focused on factor number one: did the school have “actual knowledge”?  If the parents failed that test, the whole case fails.

The court held that the school did not have actual knowledge of the sexual harassment. The most outrageous incident was the alleged “t-bagging.” (Don’t you just love middle school?).  We choose not to describe what that means.  You can Google it.  What was relevant here was the fact that the t-bagging occurred when teachers were not present. (Good to hear!)  So they didn’t know about it until a student reported it. And when that happened, the school administrators swung into action with a thorough investigation, taking reports from over 50 students.  Disciplinary action was taken.

If the parents had gotten past the “actual knowledge” hurdle, no doubt the school would have stressed that its swift and forceful response showed that it was not “deliberately indifferent.” But this case didn’t get that far. The court said that “The undisputed facts in the record lead to the conclusion that Allen ISD had no knowledge of facts that would permit the inference that [the student] faced a substantial risk of serious harassment, and that no Allen ISD official in fact drew such an inference.”

The Office for Civil Rights continues to urge a “should have known” standard in cases like this, but the courts have consistently rejected that in favor of the tougher standard of “actual knowledge.” This case is the latest example, and it can be found at 2015 WL 690276.

DAWG BONE:  THE 5TH CIRCUIT TELLS US THAT YOU CAN’T BE LIABLE UNLESS YOU KNEW ABOUT IT.

 

 

 

Dawg Bones

WATCH OUT FOR A DISBARRED LAWYER NAMED CROOK.  NOT AN APRIL FOOLS JOKE!

My mother was a great one for April Fools jokes.  One year she packed a lunch for my brother on April 1 as he headed off to school.  It wasn’t until he bit into his sandwich that he found that the only thing between the two slices of bread was a piece of paper that said APRIL FOOLS!

I suppose someone who did that these days might be reported for child abuse. But in my family, we had a sense of humor about these things.  At least I did. Not sure how my brother felt.

Anyway, today is April Fools Day, which seems like a good day to report on the case of Crook v. Galaviz.  Mr. Crook is a convicted felon and disbarred attorney.  His conviction was based on 13 counts of barratry.  Barratry, an offense usually involving a lawyer soliciting clients in an improper fashion, is prohibited by Texas Penal Code 38.12.

Mr. Crook cannot practice law anymore, but apparently, he would very much like to be a teacher.   He wants it so much that he has sued two districts, seeking to override their policies about not hiring convicted felons.   First it was El Paso, and now Canutillo.

You will not be surprised to hear that Mr. Crook lost his case. The federal district court found that the district did not violate the U.S. Constitution by refusing to hire someone with a felony conviction.  The latest challenge alleged, among other things, that Canutillo’s policies subjected Mr. Crook to “double jeopardy” and “cruel and unusual punishment.”   Nope. Those provisions only come into play in criminal prosecutions.

DAWG BONE:  NOT HIRING A CONVICTED FELON IS  USUALLY OK.

Dawg Bones

DO YOU HAVE TO PROVIDE “DUE PROCESS” BEFORE SENDING A STUDENT TO THE DAEP?

A student violates your Code of Conduct and is summarily sent to the DAEP for six weeks.  Lawyer B.J. “Bullfrog” Throttlebottom shows up in your office complaining that the student, his client, was deprived of the Due Process owed to him under the 14th Amendment to the U.S. Constitution.

You call your school district attorney, and relay the conversation with Throttlebottom. Your attorney promptly sends a letter to Bullfrog informing him that “It is impossible to violate your client’s rights to Due Process under the 14th Amendment. He doesn’t have any right to Due Process under the 14th Amendment.  He’s not entitled to ‘due process.’”

Is that so?

It is.  The latest iteration of this by a court came in C.C. v. Hurst-Euless-Bedford ISD.  This is a case in which a student was assigned to DAEP for 60 days for allegedly taking pictures of another student sitting on the toilet.  (Don’t you love middle school?)  Citing an earlier ruling, the court noted that “a student’s transfer to an alternate education program does not deny access to public education and therefore does not violate a 14th Amendment interest.”

This first came up in Texas shortly after the passage of Chapter 37 in the Education Code in 1995.  That’s when the legislature first mandated what we now call DAEPs.  San Marcos CISD assigned Timothy Nevares to DAEP (called AEP back then) and was sued over the Due Process clause of the 14th Amendment. The case went to the 5th Circuit. The court ruled that Neveres was not denied “due process” because no process was due.  “Process” is “due” only if the state (or school district) deprives a person of “life, liberty or property.” Those are the three things protected by the 14th Amendment.  The court held that “Timothy Nevares was not denied access to public education, not even temporarily.  He was only transferred from one school program to another with stricter discipline.”  Nevares v. San Marcos CISD, 111 F.3d 25 (5th Cir. 1997).

This does not mean that school administrators should be cavalier about assigning students to the DAEP.  Constitutional due process is not required, but there are procedures required by state law that are designed to ensure that the student and/or parent is given an opportunity to be heard.   So follow your procedures and provide for a fair consideration of the case.

DAWG BONE: THE 5TH CIRCUIT TELLS US THAT SENDING A STUDENT TO THE DAEP DOES NOT TAKE AWAY “LIFE, LIBERTY OR PROPERTY.”  

 

 

Dawg Bones

T.E.A.’s GENE LENZ CORRESPONDS WITH OSEP ABOUT PROGRESS REPORTS

OSEP wrote to T.E.A.’s Gene Lenz on February 7, 2014 about the duty of school districts to report on the progress of students with regard to their “benchmarks or short-term objectives.”  Most student’s IEPs do not have to include “benchmarks or short-term objectives"—they only need a measurable annual goal.  An IEP must include “benchmarks or short-term objectives” only if the student is scheduled to take an “alternate assessment aligned to alternate achievement standards.”  Our special education law (IDEA) requires schools to keep parents informed of student progress. So Mr. Lenz asked if it was necessary to report on the progress on the short-term objectives, or if reports tied to the annual goal were sufficient.

OSEP responded by quoting the statute, which makes it clear that the duty to report progress is tied into the annual goal, not any shorter term benchmark or objective.  The letter notes that “there is no specific IDEA requirement for reporting to parents on every child’s progress in meeting these benchmarks or short-term objectives.”

This is the kind of tiny detail that may cause many an eye to glaze over, but it does come up in parent complaints.   So Mr. Lenz has done Texas educators a service by seeking clarification of this fine point.  The OSEP letter can be found at SpecialEdConnection, 64 IDELR 283.

DAWG BONE: YOU CAN REPORT ON PROGRESS AS OFTEN AS YOU WANT, BUT THE LAW TIES PROGRESS REPORTS TO THE ANNUAL GOAL.