Category Archives: Dawg Bones

Dawg Bones

WHY DO LAWYERS KEEP FILING FEDERAL LAWSUITS OVER CORPORAL PUNISHMENT?

Trey Clayton, a high school student in Mississippi, filed a federal lawsuit alleging that his constitutional rights were violated when the assistant principal whacked him on the buttocks three times with a paddle.  No doubt that hurt, but the real damage occurred when Trey subsequently fainted and fell, face first, on a concrete floor.  With a broken jaw and five missing teeth, the student asserted his rights under the 8th and 14th Amendments.

The 5th Circuit dismissed the case.  The Supreme Court long ago held that the 8th Amendment (the one about “cruel and unusual” punishments) applies only in the context of criminal prosecution, not student discipline.  So the 8th Amendment argument did not work.

Nor did the argument about Due Process under the 14th Amendment.  Students are entitled to due process in connection with corporal punishment, but that process can consist of remedies available under state law.  Does Mississippi allow students to recover damages from school officials who are excessive in administering corporal punishment? It does. The 5th Circuit held that this was all of the process that was due.

The most creative argument Mr. Clayton put forth was the Equal Protection claim under the 14th Amendment. The argument was that the district paddled boys more often than girls, and that this was based on the “institutional bias” that boys violated school rules more often.  There was no evidence in the record to support this claim.

If the point of the lawsuit is to recover financial damages for the busted jaw and knocked out teeth, a simple “excessive force” claim in state court may have been more effective.  Often, however, suits like this are efforts to persuade a federal court to make a bigger point, by declaring corporal punishment unconstitutional.  Once again, that did not work.

The case is Clayton v. Tate County School District, 2014 WL 1202515 (5th Cir. 2014, unpublished).

DAWG BONE: CORPORAL PUNISHMENT IS CONSTITUTIONAL.  BUT EXCESSIVE CORPORAL PUNISHMENT VIOLATES STATE LAW

Dawg Bones

CAN “IT’S JUST LUNCH” BE SEXUAL HARASSMENT?

The Texas Supreme Court has held that a male supervisor inviting selected female employees to lunch could not possibly be sexual harassment.  The phrase “it’s just lunch” does not show up in the court’s opinion, but that seems to be the sentiment.

Debra Nicholas, the plaintiff, did not allege that she was the target of sexual harassment.  She argued that she got fired because she opposed a discriminatory practice—the sexual harassment of staff members by a supervisor.  Piecing the facts together from the court’s opinion, it looks like this all began when Greg Flores, a recently hired VP in the company, invited a female employee to go to lunch with him. Then he invited another one.

One of these women complained about this to the General Counsel, saying it made her feel uncomfortable and harassed. If it continued, the employee warned, she would file a formal complaint.

The General Counsel notified the company CEO in an effort to head off any formal complaints. The CEO brought Ms. Nicholas, his chief of staff, into the meeting.

According to Ms. Nicholas, she and the CEO followed up by meeting with Mr. Flores, informing him of the concerns and advising him to avoid such “risky” behavior.  Ms. Nicholas reported that Mr. Flores agreed to change his behavior.

That would have been the end of it, except that three years later, Ms. Nicholas was fired.  There had been an organizational shakeup, resulting in Ms. Nicholas working as Mr. Flores’s assistant.  Then the company decided to eliminate that position as a cost cutting measure. Without interviewing Ms. Nicholas for any other position, the company just let her go.

It felt like belated retaliation to Ms. Nicholas, and she sued. The jury was convinced, awarding her almost $1,000,000 in damages.  That’s enough to justify an appeal all the way to the Supreme Court.

The Supreme Court tossed the whole thing out, ruling that the district court never had jurisdiction of the case.  Why? Because the suit was against SAWS—San Antonio Water System, which is a governmental entity owned by the City of San Antonio. SAWS, like Texas school districts, is immune from most lawsuits.  That immunity does not apply to a case properly brought under the Texas Commission on Human Rights Act.  And a case alleging that the plaintiff has been retaliated against for opposing a practice that is discriminatory under that law would be sufficient to override the immunity and give the court jurisdiction.

However, the Court held that Ms. Nicholas had not properly alleged a case that fit the statute.  She was required to allege that she opposed a discriminatory practice—not behavior that might evolve into a discriminatory practice.  In its critical ruling, the Court said: “Regardless of what Nicholas subjectively believed about Flores’s conduct, no reasonable person would believe that a handful of lunch invitations amounted to sexual harassment actionable under the TCHRA.” (Emphasis added).

In other words….it was just lunch!

Given a possible “formal complaint,” Ms. Nicholas’s warning to Mr. Flores was probably a wise and prudent precautionary measure.  But it was not a statement of opposition to a “discriminatory practice.” Thus, in legal parlance, Ms. Nicholas had not engaged in any “protected activity.” Case dismissed. There goes the big verdict.  So long to the $1,000,000.

The case is San Antonio Water System v. Nicholas, decided by the Texas Supreme Court on April 24, 2015.

DAWG BONE: TEXAS SUPREME COURT JUSTICES RESERVE THE RIGHT TO INVITE THEIR LAW CLERKS TO LUNCH.

 

 

Dawg Bones

FACEBOOK, AN 8TH GRADER, AND A C IN HEALTH CLASS . . . HERE WE GO AGAIN!

Braeden Burge was bummed.  It was bad enough that he got a C in Health class. On top of that, his mom grounded him for part of the summer. Apparently, Mom did not view a C in Health as anywhere close to acceptable.

What’s an 8th grader to do?  Go to Facebook, of course!  Braeden vented a series of comments, starting with the suggestion that he wanted to “start a petition to get Mrs. Bouck fired, she’s the worst teacher ever.”  Mrs. Bouck would be the Health teacher.  One of Braeden’s friends asked (via Facebook post) what Mrs. Bouck had done, and Braden responded with “She’s just a bitch haha.”  The friend’s retort to this was: “XD HAHAHAHA!!”  And this prompted the post that got Braeden in trouble:

“Ya haha she needs to be shot.”

Braeden did all this from home (grounded, you know) on a day when school was not in session. He did not send it to Mrs. Bouck, nor was she one of his Facebook friends.  In fact, it appears that no teacher or administrator at the school knew about the Facebook posts until a full six weeks later. That’s when the parent of another student anonymously placed a printout of the posting in the school mailbox of the principal.

Now, what would you do?  Imagine that this “she needs to be shot” comment shows up in your school mailbox, but you note that it was written six weeks earlier, and Mrs. Bouck appears to be in good health. What would you do?

Principal Kara Powell called Braeden in for a chat.  The young man was respectful and compliant, quietly accepting the 3.5 day in-school suspension the principal ordered.  The principal then called the mother. The mother objected to the school’s jurisdiction over this incident, noting that it all took place at home.

The case ended up in federal court because the parent alleged that the school’s disciplinary penalty infringed on the student’s right of free speech. After all, this all took place off campus, and there was nothing even close to a major or substantial disruption of school. But the school district’s attorneys argued that “she needs to be shot” was a threat of violence. Threats of violence are not constitutionally protected.

The court ruled in favor of the student. The big problem for the school district was that it did not treat the “threat” like a real threat.  The court enumerated five things the school did not do:

*ask the parents if the boy had access to guns;
*contact the police;
*have Braeden evaluated by a mental health professional;
*discuss the comments with other teachers who knew Braeden; and
*investigate whether he made similar, subsequent comments.

The reasoning seemed to be that if the school thought this Facebook comment was a serious threat, it would have done some or all of these things.  Key Quote:

“Instead, Principal Powell simply required Braeden to sit in a school office near the teachers’ mailboxes for three-and-a-half days.  Without taking some sort of action that would indicate it took the comments seriously, the school can not turn around and argue that Braeden’s comments presented a material and substantial interference with school discipline.”

Once again, we see that being rude toward a teacher, when done off campus, does not usually justify disciplinary action. If this had happened at school, the use of the word “bitch” alone would have been sufficient to justify a short stint in ISS. But since it happened away from campus, the school was left to try to show that it was a threat of violence.  Since the school did not treat it like a real threat, the court was not convinced.

The case is Burge v. Colton School District 53, decided by the federal district court in Oregon on April 17, 2015.

DAWG BONE: IF YOU CALL IT A THREAT, YOU NEED TO TREAT IT LIKE A THREAT.

 

 

Dawg Bones

HAPPY MEMORIAL DAY!

The Dawg wishes a Happy Memorial Day to all of you, with high honors to those who have made the ultimate sacrifice while serving our country in the military. We salute you, and honor the lives you lived.

DAWG BONE: HOW FORTUNATE ARE WE, TO BE LIVING IN AMERICA.

Dawg Bones

ARE YOU READY FOR GRADUATION NIGHT SHENANIGANS?

It is the tradition in many schools that graduating seniors hand some small object to the principal as the principal shakes the hand of the graduate.   I witnessed a principal collecting gummy worms (is that what they’re called?) one time. But the best story I heard was of the principal who had to stuff over 400 condoms into his pockets during the ceremony.

One school I know of banned any sort of logo or decoration of the cap and gown. So a kid showed up with a Texas A&M logo on the top of the cap.  Hmmmm.  On the one hand, rules is rules!! On the other hand, we should celebrate and honor those students who move on to a four-year college.  Furthermore, this was in the heart of Aggieland.  “Whoops” were heard throughout the high school stadium that night.  What to do?

You need to be prepared for the valedictorian who switches speeches at the last minute, the smoke bomb going off during the ceremony, and who knows what else.

My favorite part of graduation night is the “please hold your applause until the last student crosses the stage.”  Good luck enforcing that.

I have been privileged to give the graduation speech at a number of high school graduation ceremonies.  My main advice to the graduates on this occasion is to embrace the utter cheesiness of the event.  There they are wearing silly clothes.  Mom is crying and Dad is popping pictures.  They will hug classmates that they haven’t spoken to in three years, and perhaps apologize to the teacher they tormented.  Solemn speeches are given (not heard—just given) and the school song is sung with fervor.  It’s the cheesiest moment of their otherwise way cool lives.  So they need to embrace it.

So in honor of the upcoming graduations throughout the state, I offer this poem:

IT ISN’T EASY…..BEING CHEESY

IT ISN’T EASY……BEING CHEESY.
THEY’LL CALL YOU THE FOOL WHEN YOU DARE BE UNCOOL
AND STAND IN THE WAY OF WHAT’S POPULAR TODAY.

BUT CHEESY FOLKS SHOULD TAKE UP THEIR SWORDS.
THEY SEE THE DIRECTION WE ARE HEADING TOWARDS.
WE NEED THEM NOW IN OUR SCHOOLS AND ON OUR BOARDS.
WE SHOULD THINK OF WAYS TO GIVE THEM REWARDS.

FOR IT’S THE CHEESY FOLK WHO STAY TO THE LAST.
WHO FINISH THE JOB THOUGH THEY MAY NOT BE FAST.
WHO CLEAN UP THE PLACE WHEN THE FUN IS ALL PAST.
WHO DO THE RIGHT THING THOUGH THEY MAY BE HARASSED.

THEY DO THE RIGHT THING NOT FOR DOLLAR OR PESO.
THEY DO THE RIGHT THING NOT BECAUSE THEIR BOSS SAY SO.
THEY DO THE RIGHT THING ‘CAUSE THEY ARE PEOPLE OF QUESO.

SO WHEN YOU SEE A CHEESY GUY DON’T TREAT HIM LIKE A BUG.
DON’T TELL A CHEESY GAL THAT YOU THINK SHE’S A SLUG.
DON’T WAIT TILL THE TRUTH FROM WITHIN YOU IS DRUG.
GIVE THE CHEESY FOLKS A THANKS AND A SMILE AND A HUG.

DAWG BONE: IT ISN’T EASY…..BEING CHEESY.

Dawg Bones

RETALIATION CASES OFTEN TURN ON MOTIVATION

A recent case from California nicely illustrates how courts analyze parental allegations of illegal retaliation.  The parent alleged that the district retaliated against him by cutting off his communication with staff members, and seeking to impose a restraining order on him.  The parent alleged that this was done to punish him for his advocacy for his child.

The school district asserted that it was merely trying to protect its staff from feeling harassed and threatened by a parent who had filed numerous complaints at all levels, alleging falsification of records and other illegal and unethical conduct.

The parent asserted that the school’s stated reason was baloney, or in legal parlance “a pretext” designed to hide the real reason.

The court held that the filing of a suit to seek a restraining order could be viewed as an “adverse action.”  Thus the court proceeded to assess whether the school district’s stated reason was the real deal, or, as the parent alleged, a “pretext” to hide its dark heart and retaliatory motive.

This gets courts into the difficult position of trying to figure out: “what was the REAL reason?”  The court acknowledged how difficult this is: “Courts have recognized that true motivations are particularly difficult to ascertain.”  Despite the difficulty, courts do this all the time.  Court cases frequently turn on “true motivations.” This is so in criminal law, where the prosecution must prove a certain mens rea, or state of mind, to make its case. It is also true in cases alleging discrimination in employment.  Was the employee fired because he performed poorly?   Or was it because he is a Muslim?

However, courts usually make these tough decisions only after hearing all of the evidence that both sides offer.  In other words, they do so after a full blown trial of the case.  Here, the school district was seeking a “summary judgment”--trying to persuade the court to dismiss the case in its early stages, prior to a full trial. The court refused, and noted that factual determinations about “true motivation” are “generally unsuitable for disposition at the summary judgment stage.”

There are practical implications here, which help explain why retaliation claims against school districts are on the rise.  Retaliation claims almost always turn, in part, on “true motivation.” The court here notes that “true motivation” will not usually be determined at the preliminary stage, but rather, only after a full blown trial. Summary judgment rarely works.  This extends the life of the lawsuit, making its defense more costly and risky. Thus the price of a potential out of court settlement goes up.  When the price of litigation and settlement goes up, retaliation claims become more attractive to plaintiffs.  Thus, retaliation claims continue to be on the rise.

The case is Lee v. Natomas USD, decided by the federal court for the Eastern District of California on February 25, 2015.  We found it at 65 IDELR 41.

DAWG BONE:  RETALIATION CLAIMS OFTEN TURN ON THE “TRUE MOTIVATION” FOR WHAT THE SCHOOL DISTRICT DID.

Dawg Bones

STUDENT DIES IN ATV ACCIDENT. NO ONE AT SCHOOL HELD LIABLE.

De’Jon Pierce was a junior at Hearne High School when he died in March, 2012.  The student crashed an ATV (All-Terrain Vehicle) into a tree.  What did this have to do with the school?  Well, the ATV was owned by the school’s Ag Teacher, and the student was riding the vehicle with his teacher’s permission. In fact, the teacher had taken De’Jon and some other students out of class to work on his own farm.  The suit alleged that this was done regularly, and with the principal’s permission. This work was considered part of the students’ coursework.

On the date of his death, De’Jon drove the ATV to his teacher’s father’s ranch about a mile away to deliver a tool.  Another student rode with him on the ATV. On the way back they crashed into the tree.  The other student survived. De’Jon did not.

I’ll bet if you ran that situation by most educators in Texas, they would guess that somebody would be held legally liable for the student’s death. Maybe the school district. Maybe the teacher.  Maybe the principal.  But in fact, the 5th Circuit held that neither the school, nor the principal, nor the teacher was legally responsible for this tragic accident.

The District
The school district asserted sovereign immunity. School districts in Texas are immune from liability for personal injuries, including death, unless the injury arose from the negligent use or operation of a motor vehicle by a school officer or employee acting within the scope of employment.  Here, the ATV was not operated or controlled by a school employee.   The court thus concluded that “Hearne ISD is immune from tort liability under the Texas Tort Claims Act.”

The Teacher
The parents argued that the teacher removed the boy from school without their permission, instructed him to ride double on an ATV despite not having a drivers’ license, did not properly instruct him on how to operate the ATV, did not provide safety gear, and did not maintain the ATV properly.  The court pointed out that the teacher “may have been negligent.” But that was simply not enough to impose liability under federal law, which was the basis for the suit against the teacher.  As a general rule, educators are liable under federal law for wrongful acts performed intentionally.  The court pointed out that “there is nothing to suggest that [the teacher] intended to harm De’Jon at all or even that he foresaw harm and willfully disregarded it.”  This was a tragic accident, not a deliberate act.

The Principal
The court applied much the same analysis to the claim against the principal. The claim was that the principal was negligent in supervising the teacher, and in allowing him to take kids out of school to work on his farm without parent permission.  Negligent?  Maybe. But nowhere close to deliberate indifference to a known right that could lead to liability under federal law.

The court did not conclude that anyone was negligent here, or exercised poor judgment.   It just held that negligence and/or poor judgment would not have been enough to impose liability.  Suppose, though, that the superintendent concluded that the teacher and/or principal made some serious errors in judgment here. Could the superintendent take corrective action?  Of course.  When a case goes to court, it is all about the standards for legal liability.  Standards of good judgment, however, can, and should, be imposed by school administrators.

The case is Pierce v. Hearne ISD, decided by the 5th Circuit on January 7, 2015.  We found it at 2015 WL 81995.

DAWG BONE: THERE IS A DIFFERENCE BETWEEN ACCOUNTABILITY AND LIABILITY. COURTS ARE ONLY CONCERNED WITH LIABILITY.

 

 

Dawg Bones

WHAT MAKES SOME TESTING ACCOMMODATIONS ALLOWABLE WHEN OTHERS ARE NOT?

A recent case from Illinois reminds us that accommodations for students with disabilities are designed to level the playing field—not to give any student an advantage over others.  The case involved K.P., an 8th grader in Chicago whose IEP called for her to use a calculator in her math class. The IEP also permitted any “allowable” modifications in standardized testing.

Chicago requires 8th graders to take a MAP test (Measure of Academic Progress) as part of the application process to the city’s more selective high schools.  The math portion of the MAP test is taken on a computer, and on some of the questions, a calculator pops up on the screen. Thus on those questions, all students are allowed to use the on-screen calculator.  On other questions, there is no calculator provided and students are expected to do their own calculations without a device.

When K.P.’s mother was informed that her daughter would not be allowed to bring her own calculator to the test, she sued the Chicago Public Schools, alleging that this violated IDEA and the ADA.

The court ruled for the school district.  The critical factor was that the math portion of the MAP is designed to assess the student’s ability in math—including the ability to do mathematical calculations without assistance.  An accommodation is not “reasonable” if it would cause the test results to be invalidated.  Referring to the use of a calculator to work out math problems, the court said:

That is not a reasonable accommodation but a substitution of artificial intelligence for the very skill the Test seeks to measure.

The case is K.P. v. City of Chicago Public School District #299, decided by the federal district court for the Northern District of Illinois on February 25, 2015.  We found it at 65 IDELR 42.

DAWG BONE: TESTING ACCOMMODATIONS ARE TO MAKE THINGS FAIR, NOT TO PROVIDE AN ADVANTAGE.

 

 

Dawg Bones

STUDENT-TO-STUDENT HARASSMENT LIABILITY

“The kids are calling me ‘retard, chickenhead, twitch, tic-toc and spaz.’  Isn’t this bullying????”

Jamie and Troy Nevills alleged that their son was subjected to name calling and worse while he was attending school in Mart ISD. The boy attended MISD schools from kindergarten until 7th grade, when the parents pulled him out and filed a lawsuit alleging that the school district ignored student-to-student harassment based on disability.

The student was never identified by the district as having a disability under IDEA or Section 504 but that did not prevent the lawsuit. The parents alleged that the school knew very well that their son had a form of Tourette Syndrome which produced verbal and facial tics, and made it difficult for him to speak or concentrate.

In a case involving student-to-student harassment, the parent has to prove five things in order to pin liability on the school district.  In this case, they were: 1) that the student has a disability; 2) that he was harassed based on the disability; 3) that the harassment was severe or pervasive to the point that it altered the condition of his education and created an abusive educational environment; 4) that the school knew about the harassment; and 5) that the school was deliberately indifferent to the harassment.

In many cases like this, the school district will concede one or more of those five facts. For example, if the student has been identified under IDEA or Section 504, there is not much point in contesting Factor Number One—the school itself has identified the student as having a disability.  In this case, however, the district disputed every one of those five critical facts.  The boy had not been identified or served under IDEA or Section 504 and the school denied knowledge of any condition that would qualify as a “disability.” The school denied that the student was harassed based on his disability, and denied that anything “severe” or “pervasive” occurred.

If the school district can conclusively defeat the parent on any one of the five factors, the court will dismiss the case. The parent has to prove all five—so the failure of any one of them is fatal.

Here, MISD filed a Motion for Summary Judgment.  Among other things, the Motion asserted that no reasonable jury could ever conclude that the school’s response to this situation was “deliberately indifferent.”  The 5th Circuit honed in on that one factor, and issued a decision in favor of the district.

That summary makes the whole process sound simple, but it is not. The court ruled in favor of the district because of the record keeping, the documentation, and the affidavits of school personnel that showed how the school responded to the instances cited by the parents. Much of the parents’ case was based on allegations that the school did not punish students who picked on their son.  The record, however, showed that the school responded to the instances it knew about.  Moreover, the principal brought in an outside organization to do some training of the students about bullying.

The 5th Circuit cited its earlier decision in Estate of Lance v. Lewisville ISD, 743 F.3d 982 (5th Cir. 2014) for the notion that public schools are not expected to “purge” themselves of all manner of student-to-student harassment.  Courts are expected to grant “a high level of deference” to school officials.

Judges do not want to be assistant principals.  Nor does the law encourage judicial micromanagement of student discipline cases.  That’s why you see phrases like “high level of deference.”  But keep in mind that the officials in Mart ISD were deferred to because the court could see that they were attentive to what was happening in their schools. They took action. They investigated. They trained.  They documented.

The case is Nevills v. Mart ISD, decided by the 5th Circuit on April 21, 2015.

DAWG BONE:  YOU GET A “HIGH LEVEL OF DEFERENCE” BUT ONLY IF THE JUDGE SEES SOME THOUGHTFUL DECISION MAKING ON YOUR PART.

 

 

Dawg Bones

U.S. PRESIDENTS, TEACHERS AND PHYSICAL RESTRAINT . . .

You never know what you will bump into on the Internet.  I was doing a little light research on how many presidents had served as school teachers.  You get different answers to that question, depending on how you phrase it.  The number of former teachers who became presidents ranged from five to 10. But of the 10, several of them were college professors (Wilson) or law school profs (Clinton, Obama).  When you look for honest-to-God teachers, you get only five.  Four of them taught in the 18th or 19th Century (Adams, Fillmore, Garfield and Cleveland).  The only one to have taught in a 20th Century school was our very own Texan, Lyndon Baines Johnson.

But the most interesting tidbit I came across was about Garfield.  It seems that he did not win the respect of his students until he won a violent, physical fight with a student!  Mon Dieu!! Can you imagine any of the current crop of presidential candidates having that incident on their resume?  Just imagine their responses to Wolf Blitzer’s questions:

WOLF: Governor Bush, we understand that when you were a public school teacher, you once got into a fight with one of your students.  Comment?

BUSH:  Not a fight, Wolf.  Just a bit of redirection.  After all, he was in danger of falling behind.  I followed my brother’s lead, allowing no child to be left behind.

WOLF: Senator Paul, we understand that when you were a public school teacher, you once got into a fight with one of your students.  Comment?

RAND PAUL: Not really, Wolf.  It was simply an exercise in freedom.  I was teaching the students some basic concepts about our Constitution. For example they are free to hit me.  I am free to hit back. Freedom. That’s what it was about.

WOLF: Governor Perry, we understand that when you were a public school teacher, you once got into a fight with one of your students.  Comment?

RICK PERRY: Not so, my friend.  You can’t believe everything you read in the left wing media.

WOLF: Mrs. Clinton: we understand that when you were a public school teacher, you once got into a fight with one of your students.  Comment?

HILLARY CLINTON: Not really a fight, Wolf, just more of a minor tussle.  She was trying to break the glass ceiling, Wolf. Everyone knows that I am the one who is going to break the glass ceiling.  So I took corrective action with the young lady.

WOLF: Senator Cruz, we understand that when you were a public school teacher, you once got into a fight with one of your students.  Comment?

TED CRUZ: He’s in this country illegally, Wolf.  If the federal government would carry out its responsibilities to secure the border, action like this would not be necessary.

WOLF: Governor Christie, we understand that when you were a public school teacher, you once got into a fight with one of your students.  Comment?

CHRIS CHRISTIE: Damn straight.  Beat the tar out of him. You got a problem with that?

We’re guessing that Garfield never had to answer the question.

There is much litigation these days about the use of physical force by teachers.  Advocate groups continue to seek ways to clamp down on the use of physical restraint.  The legislative session will soon be over, and we will see at that time if SB 1584 or any other legislation on this issue makes it to the Governor’s office.

DAWG BONE: KEEP AN EYE ON SB 1584 REGARDING RESTRAINT OF STUDENTS.