The Dawg hopes that all you mothers and grandmothers had a splendid day yesterday. We hope you were honored and celebrated for your many virtues.  We just want to go on record—the Dawg LOVES mothers, and respects all the efforts that moms make to keep their kids safe.  It’s just that sometimes, those efforts run into the law. That’s what happened to Judith Moreno.

Ms. Moreno alleged that her son was sexually violated by a teacher in McAllen ISD.  She sued the district, alleging that she told district officials what happened, but they failed to respond appropriately. Moreover, she alleged that the district ignored the “endemic problem on campus” concerning improper relationships between educators and students.

Ms. Moreno’s procedural problem was that she filed the suit on her own behalf—not as “next friend” on behalf of her child.  So she had to prove that the district violated her rights—not her son’s.  This turned out to be a problem.  The court noted the parent-child relationship is constitutionally protected, but not as broadly as Ms. Moreno would like. The court noted that the “case law is narrow and largely addresses the right of parents to make critical child-rearing decisions concerning the care, custody, and control of minors.”  The court summed it up like this:

Ms. Moreno is arguing that McAllen ISD’s actions allegedly caused her child harm, and as a result, she was deprived of her constitutionally protected rights.  The Court cannot find any case law in the 5^th Circuit to support this argument, and Plaintiffs have not provided any relevant authority.

What about the fact that the boy was allegedly raped? The court:

While a student has a right to be free from state-occasioned damage to his bodily integrity, it is the student, or the parent as next friend, that must bring forth a claim that this right was violated.

The suit also alleged that the parent had suffered the loss of “consortium” due to the injury to her child. The court dismissed this, noting that “Texas law is clear and it does not authorize a parent to recover consortium damages for non-fatal injuries to a child, whether due to negligent or intentional conduct.”  Similarly, the claims for intentional torts, such as assault and battery, and the intentional infliction of emotional distress ran smack into the Texas law of governmental immunity.

All of Ms. Moreno’s claims were dismissed.  The court’s opinion did not address what the lawyers call “the merits.”  Was the boy sexually assaulted by his teacher?  Did the district ignore the mother’s complaint?  Was there an “endemic problem” on campus? This case answers none of those questions.  Instead, the case reminds us that the law requires judges to apply a cold blooded analysis, even when the case is brought by a hurting mother.

The case of Moreno v. McAllen ISD was decided by the U.S. District Court for the Southern District of Texas on April 18, 2016.  We found it at 2016 WL 1258410.

DAWG BONE: NOT ALL PAINFUL EVENTS CAN BE REMEDIED IN COURT.

TOMORROW: TOOLBOX TUESDAY!! WE WILL LOOK AT THE SPECIAL RULES FOR DRUG OFFENSES.

Last Friday we told you a little bit about a cheerleader dispute in Highland Park ISD (Region 10).  The court held that whatever “right” a student has to be a cheerleader is not protected by the U.S. Constitution.  Thus the student’s due process claim was dismissed. But that was just one of many legal theories that the parents and student presented.  Here is a quick sample of other legal nuggets from this decision.

1. A suit against a superintendent in his “official capacity” is the same thing as a suit against the district. The plaintiffs sued both HPISD and its superintendent. The court said that this was redundant. Thus all claims against former superintendent Dawson Orr were tossed out.

2. Section 121.003 of the Texas Human Resources Code applies only to physical access to public facilities. This statute prohibits discrimination against people with disabilities in conjunction with “admission and access” to public facilities. This suit was not about physical access to, or the use of, HPISD facilities. This claim was tossed out.

3. Plaintiffs alleged denial of FAPE under IDEA and Section 504, but never requested a special education due process hearing. Thus these claims were dismissed due to failure to exhaust administrative remedies. Lawyers take note: the court held that exhaustion is a jurisdictional requirement—not just an affirmative defense.

4. Plaintiffs alleged an IIED claim: Intentional Infliction of Emotional Distress. The court dismissed this claim, noting that the Tort Claims Act protects school districts from any liability for an intentional tort.

5. The constitutional claim against HPISD failed because there was no pleading that a district policy or custom approved by the school board caused harm. The superintendent was accused of wrongdoing, but the superintendent is not a “policymaker.” Only the board is.

6. The parents’ claims as individuals were dismissed because they did not allege that they have disabilities or were discriminated against due to a disability.

7. The plaintiffs’ motion to amend their pleadings, so as to make out a stronger case, was mostly denied. The court noted “no amount of artful or creative pleading” would rescue some of the purported claims. However, the court left one door slightly ajar, permitting the plaintiffs to amend their Equal Protection Claim. But they would have to plead “sufficient facts to show that this injury occurred because of HPISD custom or policy.”

You are probably wondering what this case is all about.  The plaintiffs alleged that the district failed to provide accommodations or properly implement the student’s 504 plan.  This allegedly caused poor grades, the expense of outside tutors, and disqualification from the Cheer Squad.  The facts as alleged are much in dispute, but at this stage of the legal proceedings, the court takes the facts alleged as true. Even so, the court dismissed all of the claims outlined above.

The case is Dabney v. Highland Park ISD, decided by the federal court for the Northern District of Texas, on March 31, 2016.

DAWG BONE: SUITS OVER CHEERLEADING ARE ALWAYS INTERESTING, BUT RARELY SUCCESSFUL.

And remember: those of you at the LRP National Institute in New Orleans can hear my longtime partner, Elena Gallegos, speak about OSEP advice at 10:00 this morning.  Say hi to Elena for me!

I was thinking about tort liability today as I reached into our firm’s supply closet and suffered a paper cut.  Ouch!  My initial thought was that paper cuts are one of the worst things that can happen to a person. They are so unexpected, and they hurt like hell.

But when proper perspective returned, I realized that there are far worse fates that can befall a person. Take a broken shoulder, for example. That’s probably a lot worse than a paper cut.

Kelly Duran broke her shoulder when she fell off the motorcycle during a motorcycle safety course that was conducted by El Paso Community College.  She sued EPCC to recover for her physical injuries.  EPCC asserted that it was immune from liability.

The general rule here is that community colleges, like K-12 school districts, are immune from tort liability.  There is an exception if a motor vehicle is involved, but only if the injury arises from the negligent use or operation of the motor vehicle by a school officer or employee.  I think that tells you what Ms. Duran’s problem was. She was riding the bike when she fell off.  Thus, to make the EPCC liable, she had to convince the court that the instructors in the course were effectively “using” or “operating” the bike, even though she was the one riding it.

No dice.  Ms. Duran argued that the instructors in the course exercised “complete control” over the operation of the bike.  The court did not see it that way.  The court noted two earlier court cases in which a government employee who was not actually driving a motor vehicle was considered to be exercising control over it to the extent that liability was imposed. See County of Galveston v. Morgan, 882 S.W.2d 485 (Tex. App.—Houston [14^th Dist.] 1994, write denied) and City of El Campo v. Rubio, 980 S.W. 2d 943 (Tex. App.—Corpus Christi 1998, pet. dism’s w.o.j.).  But the appellate court in this case said that liability could be imposed only if the non-driver exercised direct and mandatory control.  These safety instructors did not have that level of control.  As the court pointed out, “Not only did Duran voluntarily choose to drive [the motorcycle] but she also continued to do so, even after expressing qualms about its size and inadequate rear brake.”

In short, sovereign immunity, as usual, triumphs. Whether it is a paper cut or a broken shoulder, the chances of pinning liability on your local school district are slim. The case is El Paso Community College District v. Duran, decided by the Court of Appeals in El Paso on July 22, 2015.

DAWG BONE:  TEXAS SCHOOL DISTRICTS ARE WELL PROTECTED FROM TORT LIABILITY.

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 5^th 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 5^th 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.