Roselee Gracia was terminated from her employment as a paraprofessional after over 20 years on the job.  The termination was based on three incidents involving the use of physical force with a  pre-k boy.  Both the school board and the Commissioner concluded that Ms. Gracia used force inappropriately in all three incidents.

The Commissioner’s decision reaffirms the strong protection that professional school employees have when using physical force with students. Section 22.0512 of the Education Code grants such employees a limited form of immunity. School districts may not terminate, nonrenew or otherwise discipline a professional employee (which includes paraprofessionals) based on the reasonable use of physical force.  Many teachers have relied on this statute to protect them from disciplinary action by the school, but in this case, the Commissioner concluded that the statute did not protect the employee because the force was “disproportionate.”

In this case, all three incidents were captured on hallway video cameras.  In all three, the Commissioner held that the use of force was “disproportionate” to the occasion.  Previous decisions by the Commissioner have given us five factors that should weigh in the equation when determining if force was “objectively reasonable.”  Disproportionality is one of the factors.

When I hear that physical force was “disproportionate” I tend to think that we are talking about strong, perhaps even violent actions.  I accidentally bump into you and you punch me in the face, breaking my nose. That would be “disproportionate.”  But this case illustrates that “disproportionate” force can arise in other situations.  Consider the first incident as described by the Commissioner:

…Petitioner was leading the children down the hallway. A little girl stopped at the water fountain and Student walked up to her and appeared to tell her to get back in line.  Petitioner approached the girl and Student, took the little girl’s hand and hit Student on the shoulder with the girl’s hand.

That could not have caused injury, and probably did not even produce pain.  But the Commissioner deemed it disproportionate:

Petitioner’s reaction, taking one student’s hand and using it to strike Student, is unnecessarily degrading and disproportionate to the offense, especially since Student was not fighting with the little girl, but rather, he was attempting to help her. Further, a teacher’s modeling of the use of physical force between students definitely sets the wrong example for the students.

The Commissioner had a similar view of the other two incidents.  None of the incidents involved serious misconduct by the student who was, after all, a pre-k child behaving like a pre-k child.  The “disproportionality” was not based on the intensity of physical force, but rather, on the comparison between the student’s behavior with the teacher’s response.

The case is Gracia v. Brownsville ISD, decided by the Commissioner on August 8, 2018. It’s Docket No. 025-R10-01-2018.

DAWG BONE: THOSE HALLWAY CAMERAS DO NOT LIE.

 Tomorrow: What happens when a teacher “loses it” in the classroom?