Isn’t “rebuttable presumption” a handy legalistic term? We should find ways to work this into our every day vocabulary. I think of this terminology often.
For example, picture yourself driving in the left lane on I-35, slowing down because the car in front of you is stubbornly cruising at exactly the speed limit. You bide your time because the driver has the turn signal on, indicating that the car is about to get out of your way. Mile after mile you continue. The right turn signal continues to blink, but the car stays in the left lane, blocking you. Finally you move to the right, speed on past this passive-aggressive driver, and pull back into the left lane right in front of the slowpoke.
What’s going on here? What explains the behavior of the other driver? Of course we don’t know. But I hold it that there is a rebuttable presumption that the driver is hearing impaired and thus did not hear the steady blink, blink, blink of the turn signal. I presume that to be the case based on my own experience. The first time I got into my car after obtaining hearing aids I was blasted out of my seat by the loud noise that the turn signals made. So I think that driver can’t hear the signal because of the hearing impairment. However, this presumption is rebuttable. I may later discover that the driver’s hearing ability is unimpaired, but the music was playing so loud in the car that no one could hear the turn signal. Or perhaps the driver is one of those insufferably self-righteous people who drives at 65 in the “fast lane” because 65 is the posted speed limit. Perhaps this is an effort to teach other drivers the value of abiding by the law. Not to mention the value of patience.
The point is that we make presumptions about things all the time, that may turn out to be incorrect. The presumptions are “rebuttable.” Leave it to my profession to turn this into a handy phrase.
It comes up a lot with the Texas Whistleblower Act. If an employee suffers an adverse employment action within 90 days after blowing the whistle on some perceived violation of law, there is a “rebuttable presumption” that the employer punished the employee for blowing the whistle. That’s the situation Mr. Florez was in after he was dismissed from his position as an instructional reading specialist in Houston ISD. He had reported some suspicious activity involving the STAAR test, and shortly thereafter was informed that his services were no longer needed. The district cited budget constraints.
The ”rebuttable presumption” was in place, but the HISD was up to the task. It rebutted the presumption with evidence that the decision to terminate Mr. Florez was actually made before he reported his concerns over STAAR. The internal memos in the district cited budget constraints, and no other reason. Moreover, the school support officer who approved the principal’s recommendation to terminate Mr. Florez was unaware of the man’s report about STAAR violations.
That put the ball back in Mr. Florez’s court and he failed to respond. So we have a rebuttable presumption that’s been rebutted and no response to that. No rebutting of the rebuttal. That ends it. The court held that there was no evidence in the record to establish the causal connection that is required in a Whistleblower case. Case dismissed due to lack of jurisdiction.
It’s Houston ISD v. Florez, decided by the Court of Appeals in Houston on January 26, 2023. It’s cited at 2023 WL 413573.
DAWG BONE: WHEN A REBUTTABLE PRESUMPTION IS REBUTTED YOU HAVE TO REBUTT THE REBUTTLE. GOT THAT?
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: teacher and student sex….legal consequences….