Kala Winn, teacher/coach, sued Cleburne ISD alleging sex discrimination.  The facts alleged in the suit run the gamut from minor to major issues.  The district tried to get the entire case dismissed and was mostly successful. But the court did not completely dismiss the suit. 

Ms. Winn’s allegations included the following:

*She had to teach more classes than the male coaches.

*She had to teach at two separate campuses.

*She was paid less than male counterparts with similar experience.

*After she complained about the pay, she was scrutinized by her supervisors more than male employees.

*She was “written up” for some minor problems.

*She was treated worse than male colleagues with regard to complaints and investigations.

*She was placed on administrative leave, without an explanation, after a parent complaint. Male coaches in similar circumstances were treated better.

*She was finally demoted from head coach of the softball team and replaced by a man.

The court discounted some of the complaints, noting that:

an employee’s engagement in a protected activity cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.”

But not all of Ms. Winn’s complaints fell into the “petty slights” category.  The court noted the allegations that 1) she was paid less than male colleagues for similar work; and 2) she was demoted and replaced by a man.  Ms. Winn also alleged that these actions amounted to intentional sex discrimination in light of the fact that she had worked in the district for seven years, had coached for four, and had “received excellent observations and summatives over the years.”  Key Quote:

….the Court finds she has sufficiently pleaded a plausible claim for disparate treatment discrimination, specifically alleging facts showing she has suffered adverse employment actions because of her membership in a protected class.  

This was just a first step in this case.  Ms. Winn still bears the burden of proving the truth of her allegations.  At this stage, since this was a Motion to Dismiss, the court accepts the allegations as true, and determines whether or not such allegations, if true, would amount to sex discrimination. 

The case is Winn v. Cleburne ISD, decided by the federal district court for the Northern District of Texas on January 2, 2020.  We found it at 2020 WL 30349.

DAWG BONE:  DID YOU NOTICE THAT SHE SAID HER EVALUATIONS WERE ALL EXCELLENT?

See you next week, Readers. We’re taking a spring break this month….but not next week.

A first grade teacher took a leave in early January, 2016, after her 14-year old son committed suicide.  A little more than two months later she came back to work, hoping that a return to the classroom would help alleviate her grief. 

The teacher felt good about her performance in the classroom, but others did not.  Early in May the principal and superintendent met with the teacher to express their concerns.   It must have been a difficult conversation.  The superintendent asked the teacher to take on a paraprofessional position for the next school year. This would require the teacher to resign from teaching and accept an at-will position. The superintendent informed the teacher that if she did not resign, the superintendent would recommend the nonrenewal of her contract.    The superintendent left the meeting thinking that the teacher had agreed to resign and take the paraprofessional job.

But that was not the case.  The next day the teacher informed the assistant superintendent that she wanted to sign her contract for the next year—her teaching contract.  That was a surprise to the assistant superintendent who had heard from the superintendent that the teacher would be resigning and accepting a different position. More meetings ensued, but meanwhile the deadline for recommendations to the school board was fast approaching.

So the superintendent did, in fact, recommend nonrenewal of the teacher’s contract.  However, the board tabled the matter.  After that, the superintendent offered the teacher a teaching contract for the next year with a reassignment to Pre-K.  The teacher was supposed to sign and return the contract by May 24^th. She did not do that. Nevertheless, the board voted to renew her teaching contract in June.  In July, the teacher gave the school a written resignation: “To the extent that anyone thinks I do have a valid contract with FISD, I am giving my notice of resignation.”

To recap: we have 1) a teacher trying to recover from a catastrophic loss; 2) dissatisfaction by school administrators with the teacher’s job performance; 3) an effort to persuade the teacher to accept a different position; 4) a recommendation of nonrenewal; 5) inaction by the board on that recommendation; 6) an offer of re-employment with a deadline for response; 7) the teacher failing to meet that deadline; 8) the board deciding to renew the contract anyway; and 9) the teacher’s unequivocal resignation.

Then: the lawsuit.  The teacher claimed that the school district discriminated against her on the basis of disability and forced her to work in a hostile environment.  The court ruled in favor of the district on both claims.  The court did what it is supposed to do in an emotionally charged situation—it provided a cold-blooded analysis based on well-established legal standards. 

Hostile Environment.  As to “hostile environment” the court noted that “the alleged conduct neither rises to the level of severity…nor is the type of conduct that courts have found to constitute harassment.”  Key Quote:

When the record demonstrates a legitimate concern regarding an employee’s performance, as is the case here, “criticism…and even threats of termination do not satisfy the standard for a harassment claim.”  [The teacher] must concede that she was never prevented from doing her job, suspended, or formally disciplined.

Disability Discrimination.  The district asserted that the teacher did not have a discrimination claim for the simple reason that she had resigned voluntarily.  The school never took any “adverse employment action” against her.  However, that was not the end of it. The court pointed out that a resignation could be an adverse action if it amounted to a “constructive discharge.”  If “working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” That’s where the teacher’s own testimony was relevant:

Q.  Do you think that your working conditions were intolerable?

A.  Can you explain that?

Q.  Yeah.  Do you think that your working conditions were so bad that you had to quit?

A.  No. 

The court: “This admission is a showstopper.”

The case is Willard v. Friendswood ISD, decided by the federal district court for the Southern District of Texas on December 12, 2019. We found it at 2019 WL 6790584.

DAWG BONE: CONSTRUCTIVE DISCHARGE OCCURS ONLY WHEN THE JOB HAS BECOME INTOLERABLE.

Tomorrow: female coach claims sex discrimination.

The federal district court in Waco has dismissed copyright infringement claims against Crawford ISD and Llano ISD. The cases are virtually identical.  Both cases involved a basketball coach who had a Twitter account. Both coaches retweeted a tweet from another Twitter account which contained a photograph of text that was nearly identical to a copyrighted passage from a copyrighted book.

The book was Winning Isn’t Normal by Dr. Keith Bell.  Dr. Bell got copyright protection for this book in 1989 and subsequently obtained copyright protection for one specific passage in the book, which the court referred to as “the WIN Passage.”  On top of that, in 2014 Dr. Bell trademarked the phrase “Winning Isn’t Normal.”

The school districts were not directly involved in the tweeting.  The schools did not tweet or retweet anything. But they employed a coach who retweeted a tweet that allegedly infringed on a copyright.  Thus the court pointed out that “Dr. Bell cannot establish a direct copyright infringement” against the school district. His case was based on “vicarious infringement” or “contributory infringement.” 

The court rejected both theories.  The court noted that “Dr. Bell has failed to establish beyond mere speculation that increased attendance at basketball games, increased student desire to attend Crawford ISD, or any direct financial benefit could be ‘distinctly attributable’ to the allegedly infringing Twitter post.”  Moreover, Dr. Bell “does not sufficiently allege the school district induced, caused, or materially contributed to the infringement.” 

The court dismissed the claims of trademark infringement because the coaches did not use the trademarked phrase “in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services.”  In short, if it’s not used to make a buck, it can’t be trademark infringement.  The court noted that the coach retweeted in an effort to “instruct others to read and appreciate the passage for its motivational value.” 

The cases are Bell v. Crawford ISD and Bell v. Llano ISD. Both were decided by the federal district court for the Western District of Texas on February 13, 2020. I’m pleased to let you know that Kelly Kalchthaler and Joey Moore, shareholders in our Austin office, represented the districts in these cases. 

Be careful on Twitter, folks. 

DAWG BONE: TWEET OTHERS AS YOU WOULD HAVE THEM TWEET YOU.

Tomorrow: constructive discharge.

On Tuesdays we save this space for issues related to the Toolbox, our firm’s one day training program regarding discipline of students with disabilities. Today we consider how a unique Texas statute fits into the Toolbox. 

The statute, T.E.C. 37.002, authorizes classroom teachers to order the “removal” of an unruly student from the classroom.  The statute applies to all students—general education students, 504 students, special education students. Removals come in two categories: discretionary and mandatory.  Today we review what happens when the removal is “discretionary.” 

Teachers can order the removal of the student when 1) the teacher has documented repeated interference with the teacher’s ability to communicate, or with the ability of the class to learn; or 2) when the student’s behavior is so unruly, disruptive or abusive that it seriously interferes with the teacher’s ability to communicate or the ability of the students to learn. 

When this happens, the CBC (Campus Behavior Coordinator) or other administrator swings into action by calling for a conference to be attended by the teacher, the student and the parent.  The conference must be held within three class days of the day of removal, and the student cannot be sent back to the teacher’s classroom until the conference is held.  At the conference, the administrator gives the student written or oral notice of the reasons for the removal, and the student has a chance to respond.

After the conference, and after giving consideration to all of the relevant factors, the CBC or designee makes a decision among four options.  First, the student can be assigned to “another appropriate classroom.” Second, the student can spend some time in ISS (In School Suspension). Third, the student might go to DAEP.  Fourth, the student can be sent back to the teacher who removed the student.  This fourth option carries an asterisk. The teacher has to consent to the student’s return.  If the teacher does not give consent, the matter goes to the Placement Review Committee (PRC) which has the power to override the teacher. 

Let’s think about how this meshes with the tools in the Toolbox if the student who is removed is in your special education program.

ASSIGNED TO ANOTHER APPROPRIATE CLASSROOM:  If the IEP remains the same, the services are the same, the schedule is the same, and it’s just a matter of replacing the teacher with another teacher, this would not be a change of placement. Therefore, the CBC could order this, without the necessity of an ARD meeting.  You do not need to use any of the “tools” in the Toolbox to do this.  However, if you want to add or revise a BIP, or otherwise beef up services to support the teacher, you will need an ARD or an IEP Amendment to do that. ISS.  If the CBC chooses to assign the student a few days of ISS, the CBC will need to know two things: 1) in our district do we “count” the days in ISS toward the ten-day limit? 2) is the student

within the FAPE-Free Zone?  If the school has not used up the student’s 10-day FAPE-Free Zone, then the CBC can definitely use Tool #7 to assign the student to ISS for a few days.  If the FFZ is already exhausted, then it matters whether or not ISS “counts.”  We dive into this in some detail in Toolbox training.

DAEP: this is not going to be an option unless the CBC concludes that the student’s conduct meets the standards in the Code of Conduct for a DAEP assignment. If that’s the case, the CBC should consider Tool #6—a Disciplinary Change of Placement. This requires due process and an ARD meeting for a manifestation determination. 

BACK TO THE SAME TEACHER: If the teacher gives consent to take the student back, then this is an easy option.  However, the CBC might want to consider additional support for the teacher.  Does the student have a BIP? If not, it might be time to consider one. If so, it might be time to improve it.  To add support for the teacher generally requires changes to the IEP. Thus you would need to either call for an ARD meeting, or document parental agreement to IEP changes.

We will address mandatory removals next Tuesday, and then dive into PRC protocol the week after that. Keep coming back!

DAWG BONE: TEACHERS CAN ORDER A REMOVAL.  THIS NECESSITATES A CONFERENCE.

Tomorrow: copyright infringement!

The 9^th Circuit has ruled in favor of an Oregon school district that adopted a policy (the Student Safety Plan) to accommodate transgender students by allowing them to use bathrooms, locker rooms and showers that match the student’s gender identity, rather than the biological sex.  It’s a unanimous ruling from the three-judge panel, a 55-page opinion that appears to be teed up for SCOTUS review.

The suit was filed by parents and students who opposed the plan.   The plaintiffs alleged that the district’s Student Safety Plan policy violated four legal standards. 

First, the 14^th Amendment right to privacy.    There is such a right, but the court held that it was not broad enough to cover this situation.   The 14^th Amendment “does not provide high school students with a constitutional privacy right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different from theirs.”

Second, Title IX.  The court rejected the Title IX claim for several reasons. First, the Safety Plan treated boys and girls alike. Thus on the face of it, there was no discrimination based on sex. Second, although Title IX permits sex-segregated facilities, it does not require them. Third, the claim of a “hostile environment” lacked evidence of anything that met the standard of “severe, pervasive and objectively offensive.”  There was no evidence in the record of any conduct by transgender students that amounted to “harassment.”  Key Quote:

Plaintiffs allegedly feel harassed by the mere presence of transgender students in locker and bathroom facilities. This cannot be enough.  The use of facilities for their intended purpose, without more, does not constitute an act of harassment simply because a person is transgender.

Third, the right of parents under the 14^th Amendment to direct the upbringing of their children.  This well-established Constitutional right permits parents to choose a private school.  It does not permit parents to dictate curriculum or policy in the school. Key Quote:

While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child.  (Emphasis in original).

Fourth, the Free Exercise of Religion clause in the First Amendment.   The court concluded that the Student Safety Plan was neutral regarding religion. It did not “force any Plaintiff to embrace a religious belief and did not punish anyone for expressing their religious beliefs.” Moreover, it applied across the board to believers of all kinds, and non-believers as well.  Since it was “neutral” and “generally applicable” it would be deemed constitutional as long as it was rationally related to a legitimate governmental objective. The court held that it was:

The Student Safety Plan is rationally related to the legitimate purpose of protecting student safety and well-being, and eliminating discrimination on the basis of sex and transgender status.

Let’s put this in perspective.   First, this is an important ruling by a high level court on an issue of interest to Texas educators.   The specific ruling is that the district’s Safety Plan did not violate the Constitution or Title IX.  The court did not say that schools must adopt such a policy. It says that they may.  Moreover, this decision is not a binding legal precedent in Texas, but can be cited by Texas courts as “persuasive authority.”

Second, as this case illustrates, schools can get sued regardless of what decision they make about accommodating transgender students. There are cases where schools limit all students to bathrooms that match the biological sex. Schools can be sued in cases like that by the transgender student.  Here we have a school district that accommodated the transgender students and got sued by parents who objected to the policy. 

Third, we still have no binding legal precedent in Texas on this issue.  SCOTUS will eventually sort this out for us.  Until then, each district should consider its unique situation and make its policy decision in consultation with legal counsel.

Fourth, public schools are ground zero in our nation’s culture wars, as evidenced by the number of advocacy groups that filed briefs in this case. They included: ACLU, Transgender Students and Allies, the National Women’s Law Center, National PTA, GLSEN, American School Counselor Association, National Association of School Psychologists, the American Academy of Pediatrics, the American Medical Association, the American Public Health Association, 13 other medical, mental health and other health care organizations, the National Center for Lesbian Rights, the Transgender Law Center, PFLAG, Inc., Trans Youth Equality Foundation, Gender Spectrum, Gender Diversity, the Transactive Gender Project, the National Education Association, the State of Oregon, the Lambda Legal Defense and Education Fund, school administrators from 30 states and the District of Columbia, the Anti-Defamation League, Americans United for Separation of Church and State, Bend the Arc Jewish Action, Central Pacific Conference of the United Church of Christ, Corvallis Area Lavender Women, Greater Seattle Business Association, Hadassah, the Women’s Zionist Organization of America, Human Rights Campaign, Jewish Council for Public Affairs, Jewish Federation of Greater Portland, Keshet: For LGBTQ Equality in Jewish Life, National Center for Transgender Equality, National Center for Youth Law, National Council of Jewish Women, National Queer Asian Pacific Islander Alliance, OCA-Asian Pacific American Advocates, People for the American Way Foundation, Public Counsel, South Asian Americans Leading Together, Union for Reform Judaism and the Central Conference of American Rabbis.

The case is Parents for Privacy v. Barr, (yes, it’s that Barr), decided by the 9^th Circuit on February 12, 2020.  We found it at 2020 WL 701730. 

DAWG BONE: SCOTUS—ARE YOU READY FOR THIS????

Tomorrow: Toolbox Tuesday!!

On February 12^th we told you about the Non-Subversive Oath that Texas educators were required to sign during the McCarthy Era “Red Scare.”  I’m grateful to John Droll, a Daily Dawg subscriber from Itasca ISD (Go Wampus Cats!) who tipped me off to a federal court case from 1968 involving this oath.

The case involved a tuba instructor in the newly created Dallas County Junior College, now known as El Centro College. Tuba instructor!! This reminds me of “Mr. Deeds Goes to Town” in which Gary Cooper plays an eccentric tuba player.  Those tuba guys. Sheesh. 

Anyway, Mr. Everett Gilmore (Tuba Guy) balked when the newly created junior college asked him to sign a loyalty oath. This was September, 1966.  Not much money was involved.  Tuba Guy was due to receive $150 for a semester of teaching tuba.  Big bucks!  In October, when Tuba Guy refused to sign the oath, the college terminated him, offering him a check for $37.50 which he had earned up to the date of termination.  Mr. Gilmore returned the check, but requested reinstatement alleging that “the termination of my employment by the college deprives me of constitutional protections.”

The federal court agreed.  Key Quotes:

While there can be no compromise with subversion, concomitantly, there can be no fettering of the exploration in the realm of ideas. 

Suppression will not kill nefarious ideas, only exposure will.  Our nation can survive occasional falsehood.  Its permanence and vibrancy as a democracy demand that freedom which perchance permits the false to live for a day.  Attempted suppression sometimes fortifies the false with undeserved dignity. Silence is often more contemptuous of its falsity.

Oaths in support of the government are not abhorrent to the Constitution. Indeed, the Constitution provides one.  The vice of the oath condemned here is that it equates membership or association with non-allegiance.  A statute which automatically disqualifies applicants on the basis of membership alone ensnares the innocent with the guilty.

The case involved an interesting cast of characters.  The plaintiff was represented by Dave Richards of the ACLU, aka the husband of Ann Richards.  The opinion of the court was written by Judge Irving Goldberg, a Port Arthur native, graduate of UT and Harvard Law, appointed to the 5^th Circuit by LBJ.  Also on the three-judge panel was Sarah Hughes, the federal judge who administered the oath of office to LBJ in a cramped airplane at Love Field on November 22, 1963.

Wow. History! The case is Gilmore v. James, decided by a three-judge panel of federal judges for the Northern District of Texas on January 15, 1968.  We found it at 274 F.Supp. 75. 

Thank you, Mr. Droll!!

DAWG BONE: “OUR NATION CAN SURVIVE OCCASIONAL FALSEHOOD.”  HMMM.  I WONDER.

The Texas Ethics Commission slapped a $1500 fine on a former school superintendent for using public funds to promote the passage of a TRE (Tax Ratification Election).   This was mainly about a video produced by the district that included a graphic of a TaxPayer Knight fending off a Lost Funding Dragon.  The Commission said the video, taken as a whole, was constructed as a persuasive argument asking voters to support the TRE. 

There are “watchdogs” all over the place scrutinizing district materials in conjunction with a bond or TRE.  It’s fine to produce materials that provide factual information, but those materials are not supposed to advocate. The distinction between “factual information” and “advocacy” is a fine one. 

Walsh Gallegos attorneys can help you with this. If you have a matter going to the voters, let us know if we can help with the review of your materials. 

This decision comes from the Texas Ethics Commission “In the Matter of Ted Moore.”  It was decided in November, 2019, Docket No. SC-3170599.   

DAWG BONE:  YOU KNOW WHAT WATCHDOGS DO?  THEY WATCH.

Tomorrow: The Wayback Machine returns!

A district court in Dallas County has permanently enjoined a Lancaster ISD school board member from “serving as an Advocate” for a student at ARD meetings, at mediation or due process hearings.  The court noted that a board member has a “fiduciary duty of loyalty” to the District, which conflicted with her role as an Advocate for a single student. Key Quote:

The evidence presented at time of trial established conflicting loyalties with Defendant Morris’ serving simultaneously as a Trustee and as an Advocate in the same District that arise to the level of a breach of a fiduciary duties that harm the District relative to the following:

The court then listed four examples of how the breach of fiduciary duties plays out:

1.  Access to information.  A trustee would have access to information not available to an Advocate.
2. Taking positions adverse to the district.  Disagreements at ARDs, as well as due process hearings provide examples of situations in which an Advocate might take a position adverse to the District.
3. Considering all students.  The actions of an Advocate focus on the needs of one student, but District policy requires “Board members to act in the best interests of the District as a whole, all students and all schools.”
4. You can’t take off your “board member hat.”  Key Quote:

Ms. Morris….never loses the status of Trustee in the eyes of District personnel.  Specifically, Ms. Morris’s involvement as an Advocate in ARD meetings with District personnel has been disruptive to the District’s relationship with its employees and parents/students within the District, inhibited job performance by District employees, prolonged and complicated ARD meetings, rendered the ARD process ineffective for the District and its students (by causing District personnel to substitute—or at least, consider substituting—the best interests of the District students in favor of the employee’s own interest in maintaining his or her employment) unduly influenced the outcome of ARD meetings, and caused unnecessary expenditure of the District’s resources.

Keep in mind that a board member can attend ARDs and advocate zealously for the board member’s own child.  But Ms. Morris operated a non-profit for which she served as an Advocate for other children.  This court order does not prohibit her from doing that in other districts, but bars her from being an Advocate in the district she serves as trustee.

Special education is a zero sum game. The budget is fixed from the start. Thus when more resources go to the needs of one child, there is a reduction in what is available for the rest. That’s why all district employees, and trustees, are required to consider the needs of all children, constantly balancing the needs of the one with the needs of the others. The court’s decision in this case is a recognition of that reality.

This case is Lancaster ISD v. Morris, decided by the 44^th District Court in Dallas County on February 2, 2020.  It’s Cause No. DC-19-16883.

DAWG BONE:  WHEN YOU ARE A TRUSTEE YOU ARE A TRUSTEE 24/7. 

Tomorrow:  Beware of ethics complaints!

Tuesdays here at the Daily Dawg are saved for the Toolbox—our firm’s one-day training program about special education discipline.  For the next few Tuesdays, I’m going to address the right of the teacher to order the removal of an unruly student, and how that intersects with federal law pertaining to students with disabilities. How does the right of a Texas teacher to order the removal of a student from the classroom fit into the Toolbox?  Good question.

Teachers have had the power to remove an unruly kid from the classroom for decades, but it seems to be drawing more attention these days.  There were several new laws enacted in 2019 designed to protect this right.  More teachers seem to be aware of the rights they have, and to be willing to exercise those rights.

Today: just some basics.  The statute is Texas Education Code 37.002.  It empowers teachers to “send” a student to the office or to “remove” the student from the classroom. “Sending” and “removing” are two different things. 

The power to “send” the student simply puts into law what teachers have done from the beginning of time.  There are no specific standards in the law. It just says this:

A teacher may send a student to the campus behavior coordinator’s office [CBC] to maintain effective discipline in the classroom.  TEC 37.002(a).

The CBC then uses “appropriate discipline management techniques consistent with the student code of conduct…that can reasonably be expected to improve the student’s behavior before returning the student to the classroom.” 

Does this apply equally to the student with an IEP?  Sure.  But as CBCs consider the range of “discipline management techniques,” they should be sure to review the student’s BIP if there is one.

When a teacher orders the “removal” of a student you are dealing with a more complicated situation.  There are “discretionary” removals and “mandatory” removals, and we will deal with those on the next two Tuesdays. But before we finish up today, one more thing: your campus must have a PRC—a Placement Review Committee.  The Dawg has the impression that there are some campuses that have never put this into effect. 

The PRC comes into play when 1) a teacher “removes” a student; 2) the principal orders the student back to that teacher’s classroom; and 3) the teacher refuses to give consent.  That’s when the matter goes to the PRC.

The PRC should be established before it’s needed.  So take a look at T.E.C. 37.003, which spells out how the PRC works. There are three members.  The faculty chooses two teachers and one alternate (in case one of the two regular members is the “removing” teacher), and the principal appoints the third member from “the professional staff” of the campus.

If you don’t have a PRC, you ought to create one at the next faculty meeting.  If you don’t create the PRC until you have a need for one, there is added pressure on the teachers for the selection of the members. So do this now, before a teacher invokes the process.

DAWG BONE: “SENDING” AND “REMOVING”—TWO DIFFERENT THINGS.

Tomorrow: How do you feel when a board member attends the ARD meeting?

Give us our due—we lawyers are a clever bunch.  Only a clever lawyer can take a statute that requires equal treatment of boys and girls and then assert that a teacher who treats the boys and girls the same has violated the statute, seeing as how boys and girls are different.  Clever. But clever does not mean correct.

We told you about this case on September 16, 2019, when the federal court tossed out the case against Dallas ISD and one of its PE teachers.  This is the memorable situation where the teacher required a 5^th grade girl to perform 260 “ceiling jumps” (a.k.a. “burpees”) without a break as punishment for not dressing out properly for class.  Yowza. 

The girl claimed that this was a Title IX violation, but blew her case up when she testified that the teacher treated the boys and the girls the same.  That’s a fundamental problem if your case is based on alleged sex discrimination.  But never fear: the lawyer argued that treating the boys and the girls the same was the problem.  The court tells us that the Petition:

alleged that [the teacher] treated boys and girls the same even though professional standards of care required him to treat them differently.  She asserted that [the teacher’s] P.E. program violated Title IX because it did not consider the physical and metabolic differences between boys and girls. 

It did not work.  The court reaffirmed its earlier decision, noting that this argument “is just another way of alleging disparate impact” which is a theory of liability that Title IX does not permit.  The district was not liable because the district did not violate Title IX.

What about the teacher?  Teachers can be personally liable for using excessive force in the discipline of a student.  However, the suit alleged that the teacher should be liable pursuant to Texas Education Code 22.0511.  That’s a curious position to take.  That statute does not authorize such a suit. In fact, it protects teachers from personal liability, while providing for an exception for excessive use of force.  Thus the court dismissed the suit against the teacher. 

Perhaps things would have been different if the suit had been filed as a simple tort case in state court, arguing that the teacher caused physical injury to the girl by ordering excessive physical punishment.  The teacher would have asserted the immunity protection provided by TEC 22.0511, and the court would have to make a ruling about that.  But that’s not where the case was filed and that’s not the outcome.  Instead, district and teacher are off the hook. 

The case is Poloceno v. Dallas ISD, decided by the federal court for the Northern District of Texas on December 30, 2019.  We found it at 2019 WL 7305216.  The plaintiff has filed a notice of appeal to the 5^th Circuit. We’ll keep our eyes on this one.

DAWG BONE:  TREATING BOYS AND GIRLS THE SAME DOES NOT VIOLATE TITLE IX.  DUH. 

Tomorrow: Toolbox Tuesday!!