There are three things we can learn from a recent decision of the Commissioner in a nonrenewal case.

First, the teacher’s attorney has to point out specific mistakes in the board’s decision by citing to the local record along with legal authority. Here’s how the Commissioner put it:

It is not the job or the role of the Commissioner to review the local record and legal authority to determine if at any point an improper decision was made.  Nor is it the job of opposing counsel to guess what argument Petitioner is making. It is the job of the petitioner to demonstrate that a school district’s decision is incorrect by showing where in the record an error occurred and by citing authority to show such error requires reversal of the board’s decision.

Second, when the school board hears the case the rules about “hearsay” do not apply, unless the board’s rules require that they do.  This is one way in which hearings before the school board differ from a hearing before an independent hearing examiner. In the independent hearing system, the Texas Rules of Evidence apply, including the hearsay rules.

Third, if the district’s lawyer files a brief that points out the evidence in the record that supports the board’s decision, the teacher’s lawyer needs to respond to that. Here, there was no response to the district’s brief, and the Commissioner again noted what he is not willing to do: “It is not the Commissioner’s job to make Petitioner’s arguments for her.”

Nonrenewal of the principal’s contract was supported by substantial evidence, and thus, the decision was upheld by the Commissioner.  The case is Ross v. Judson ISD, Docket No. 052-R1-06-2016, decided by the Commissioner on August 15, 2016.

DAWG BONE: NOT EASY TO OVERTURN A BOARD’S NONRENEWAL DECISION

 File this one under: LABOR AND EMPLOYMENT

On June 15^th of this year the Commissioner signed off on a decision to nonrenew a teacher’s contract.  There are five key lessons about the nonrenewal process that we can draw from this decision.

First, the recommendation of the principal is not legally required.  We discussed this point in more detail here on Monday.  As noted on Monday, it is rare and a bit problematic when the principal has not recommended nonrenewal. It raises questions.  But the Commissioner found nothing in the law, or Board Policy DFBB(Local) that absolutely requires a principal’s recommendation.

Second, this is yet another case that illustrates that “Substantial evidence is not a high standard.”  This teacher lost her job because, on one occasion, she “roughly grabbed a student” in a way that was “unnecessary and without justification” and caused a “soft tissue injury.”  There was evidence in the record about a prior incident from an earlier year, but this was considered only for the purpose of proving that the teacher was “on notice” of the district’s standards.  The evidence that supported the nonrenewal consisted of the single incident of “rough grabbing.”  The Commissioner’s decision provides no context for this. We learn nothing about the teacher’s track record with the district.  This one event was sufficient to end her employment.

Third, teachers who do not testify at their own nonrenewal hearings take a big risk.  The Commissioner noted that “Because Petitioner did not testify, it is inferred Petitioner knew her testimony would not support her case.”

Fourth, school districts must produce its employees to testify at a nonrenewal hearing upon proper request by the teacher.  The Commissioner cited an earlier case for this:

School districts can compel their employees to testify.  For the hearing to be fair, teachers must also have the ability to compel school employees to testify.

(Kopycinski v. Fort Bend ISD, Dkt. No. 111-R1-598 (Comm’r Educ. 1998).

In this particular case, this rule of fair play did not help the teacher. She had asked for two school employees to testify and they did not.  But the Commissioner held that 1) this was a procedural error that was not properly preserved by the teacher’s lawyer; and 2) this procedural error would not have produced a different outcome anyway.  The statements of the two employees were read into the record.  Those statements said that the teacher grabbed the student on the arm, not the neck. The Commissioner said this was irrelevant: “Exactly where Petitioner grabbed the student is not significant.”

Fifth, a teacher facing possible nonrenewal of a contract is not entitled to “due process.” There is no “property interest” at stake.  In support of this well-established point of law, the Commissioner cited six prior cases.

The case is Hernandez v. Point Isabel ISD, Dkt. No. 025-R1-04-2016, decided by Commissioner Morath on June 15, 2016.

DAWG BONE: “DUE PROCESS” IS NOT REQUIRED, BUT FAIR PLAY IS.

In the normal course of events, the nonrenewal of a teacher’s contract begins with a recommendation from the principal.  If the superintendent signs off on that recommendation, it goes to the board.  The board can then propose that the teacher’s contract not be renewed. But what happens if the first link in that chain is missing?

In a recent decision, Commissioner Morath tells us that “A school board may propose nonrenewal even when a principal has not recommended nonrenewal.”  In fact, the Commissioner cites an earlier case holding that not even a superintendent’s recommendation is needed (Berry v. Kemp ISD; Dkt. No. 103-R10-600 (Comm’r Education 2001).  The teacher’s lawyer pointed out the state law that authorizes principals to approve “all teacher and staff appointments” for the campus.  But the Commissioner held that this does not mean that the principal’s recommendation is necessary for a nonrenewal.

Nonrenewals that are not supported by a principal and superintendent recommendation are rare, and somewhat problematic.  The question naturally arises: if the principal, the direct supervisor, did not recommend the nonrenewal of this contract, then why should the district nonrenew the contract?  There may also be problems with producing relevant documentation and evidence to support the nonrenewal in the absence of a principal’s recommendation.

But none of that was a problem in the recent decision. The evidence showed that the teacher “roughly grabbed a student who was under her supervision.” The Commissioner concluded that this was “unnecessary and without justification.”  There was disputed testimony as to whether the “rough grab” was on the arm or the neck. The Commissioner said it did not matter: “Exactly where Petitioner grabbed the student is not significant.”

We will have more to say about this case later this week, so stay tuned.  The case is Hernandez v. Point Isabel ISD, Dkt. No. 025-R1-04-2016, decided June 15, 2016.

DAWG BONE:  TO SUPPORT THE NONRENEWAL OF A TEACHER’S CONTRACT IT IS BEST TO HAVE A RECOMMENDATION FROM THE PRINCIPAL.  BUT IT IS NOT ALWAYS NECESSARY.

File this one under: LABOR AND EMPLOYMENT

Major changes to the Fair Labor Standards Act (FLSA) go into effect on December 1.  This is the federal law that requires extra compensation for employees who are classified as “non-exempt.”  The majority of school district employees are exempt from the FLSA’s requirements. We are confident in making that statement because we are sure that the majority of your employees are teachers or academic administrators, such as principals and assistant principals. Those folks are “exempt” meaning that even when they work way over 40 hours a week (i.e., every week) they are not entitled to overtime or comp time.

But there are also many school district employees who are “non-exempt,” meaning that they are covered by the FLSA and, therefore, entitled to extra compensation in some form if they work more than 40 hours in a week.   With the changes that go into effect on December 1, some of the people who were previously “exempt” may move into the “non-exempt” category. This is just one of many significant changes in the FLSA regulations that you need to know about.

Our firm is hosting an audio conference on this very important topic next week.  On Tuesday, September 13^th, Sandi Tarski and Alexander Berk from our Irving office will discuss the ins and outs of FLSA with an eye toward the practical implications in the public school setting. This two-hour audio conference (10:00 to Noon) provides an excellent, low cost vehicle for training for HR administrators and others in supervisory positions. Go to our firm’s website to sign up: www.walshgallegos.com.

DAWG BONE: FLSA CHANGES ON THE HORIZON—GET READY!

File this one under: LABOR AND EMPLOYMENT

Tomorrow: What to do with homeschoolers?

Troup ISD proposed to terminate the contract of Coach Dennis Alexander.  This was based on allegations of improper use of physical force with kids, and improper use of the King’s English.  Yesterday we talked about the physical force, which the Commissioner concluded was sufficient to justify the man’s termination. But the Commissioner also made an important point about the use of profanity.

Witnesses in support of the coach claimed that he only “occasionally” used “relatively mild curse words.”  We’re not sure what words they were referring to, but the independent hearing examiner noted that “It is uncontroverted that [the coach] repeatedly used profanity, including F-bombs, G-D, and “get your f***in a**es over here.”

The asterisks are in the original, but we think you smart readers can figure this out. Besides, the asterisks will help us get past your school district’s filter!

This testimony being “uncontroverted” the coach’s lawyer had to come up with some justifications for such strong language.  The lawyer argued that 1) one student and an assistant coach were not offended; 2) the kids have heard this elsewhere; 3) other coach’s cuss too—in fact one was ejected from a game; and 4) an English teacher had assigned the reading of a book that included similar language.

Neither the hearing examiner nor the Commissioner found any of that persuasive.  The Commissioner put it this way:

The fact that a book used in an English class contained strong language is no excuse for Petitioner using equally strong language. Language that is appropriate in an English text may not be appropriate for a professional educator to use before students.  The fact that another of Respondent’s coaches was ejected from a game due to the use of foul language also does not excuse Petitioner. A one-time use of foul language in the heat of competition is not the same thing of [we think he means “as”] consistently using very foul language during practice.

Termination upheld.  The case is Alexander v. Troup ISD, decided by Commissioner Morath on May 20, 2016: Docket No. 023-R2-02-2016.

DAWG BONE: LET’S KEEP THE ASTERISKS OUT OF OUR LANGUAGE.

File this one under: LABOR AND EMPLOYMENT.

Coach Alexander’s troubles began when a board member reported to the superintendent that the coach had slapped a student, that student being the board member’s son.   The superintendent investigated.  He found out that there were allegations of two additional incidents involving other students.  On top of that, some people reported that the coach cussed a bit.  The superintendent put the coach on leave with pay. Two months later the board proposed termination.

After hearing from 11 witnesses, the independent hearing examiner concluded that the coach had, indeed, slapped the boy, leaving visible marks on his face; hit a second student on the back of the head, causing pain and embarrassment; and shoved a third student to the ground from a kneeling position.  Critical to the holding was the testimony of an athletic trainer who both saw and heard the slap, and was concerned enough about it to report to CPS.

The board terminated the man’s contract and the Commissioner affirmed that decision. Commissioner Morath was straightforward in his decision:

Each instance of rough handling a student is alone sufficient to establish good cause to terminate Petitioner’s contract.  It is highly inappropriate for teachers to slap and push down students.

The coach alleged that the superintendent’s investigation was biased because the football team was not doing very well. The argument was that the superintendent and board seized on a “playful” incident to justify showing him the door. The coach noted that the boy had two relatives on the school board—both his father and his grandfather.

But as the Commissioner noted, “A biased investigation would not be able to influence an independent hearing examiner who is appointed by the Commissioner and who makes a decision only after all the evidence presented by both sides under a statute that provides for full due process protections.”

This is a strong statement from the Commissioner about physical mistreatment of students. As to the cursing, we’ll talk about that tomorrow. Stay tuned!

The case is Alexander v. Troup ISD, decided by the Commissioner on May 20, 2016: Docket No. 023-R2-02-2016.

DAWG BONE: “EACH INSTANCE OF ROUGH HANDLING A STUDENT IS ALONE SUFFICIENT TO ESTABLISH GOOD CAUSE TO TERMINATE PETITIONER’S CONTRACT.”

File this one under: LABOR AND EMPLOYMENT

Tomorrow: You may be shocked.  SHOCKED!! To learn that a football coach used profanity.

We’ve all seen it on TV. The defendant asserts his 5^th Amendment right not to testify against himself and the judge advises the jury not to read anything into this.  But that’s not what happened when Coach Alexander did not testify in his termination hearing.  Here’s what the Commissioner’s decision said about that:

It should also be noted that Petitioner [Coach Alexander] did not chose [sic] to testify.  It is proper to draw an adverse inference from this:

When a party with special knowledge of a disputed issue fails, without explanation, to testify about it, a judge may infer that the party knew its testimony would not support its claim. [Case cites omitted; emphasis added].

It may be inferred that Petitioner knew if he testified it would not support his case.

The Commissioner upheld Coach Alexander’s termination based on the substantial evidence rule.  This being a termination case, the original decision came from an independent hearing examiner.  The hearing examiner ruled against the coach and the school board affirmed that decision.

When a school board approves of the decision from the independent hearing examiner, it’s very difficult for the teacher to override that decision, especially given the substantial evidence rule. As the Commissioner points out in this case:

*the presumption is that the decision is supported by substantial evidence and the other guy has to prove otherwise;

**the evidence may actually “preponderate against the decision of the agency and nonetheless amount to substantial evidence.”

***”The true test is not whether the agency reached the correct conclusion, but whether some reasonable basis exists in the record for the action taken by the agency.”

Summing up, the Commissioner noted that “Substantial evidence is not a high standard.” No kidding.

Thus the decision of the Troup ISD school board, terminating Coach Alexander’s contract, was affirmed.  The decision was based on evidence of “rough handling” of students and the use of inappropriate language. We’re going to tell you more about the rough handling tomorrow, and save the cursing for Friday.

The case is Alexander v. Troup ISD, decided by the Commissioner on May 20, 2016; Docket No. 023-R2-02-2016.

DAWG BONE:  5^TH AMENDMENT PROTECTS YOU IN A CRIMINAL CASE, NOT A CIVIL CASE.  REMEMBER WHAT HAPPENED WITH O.J.?

File this one under: LABOR AND EMPLOYMENT

Tomorrow: Is “rough handling” of a student grounds for termination?

Today’s Daily Dawg has nothing to do with football, but it does involve former UT quarterback and assistant coach, Major Applewhite.  I expect most readers will remember that name.  Major was the guy right before Vince Young.  Major’s name has come up in a lawsuit filed by former UT track coach, Beverly Kearney.

In 2012, UT informed Coach Kearney that it was planning to terminate her employment due to her inappropriate personal relationship with a student a decade earlier.  Coach Kearney admitted this indiscretion.  Rather than being fired, she resigned.

Then she filed suit.  Coach Kearney had been extraordinarily successful at UT. She coached the women’s track and field team for about 21 years and regularly lit up the orange tower with conference and national championships.  In her suit, she alleges that she won more competitions than any other African-American coach in the history of NCAA sports.  Moreover, at the time of her termination, she was the only African-American head coach in UT’s history.

It did not escape Coach Kearney’s attention that the University was planning to fire an African-American woman, but it did not fire white males who she believed had engaged in similar behavior.   In her suit Coach Kearney mentions a volleyball coach, various professors, a department chair and a high level administrator. But it was the assistant football coach who was mentioned most prominently.  UT did not fire Assistant Coach Applewhite after he acknowledged that he had a one-night stand with a student trainer after UT’s victory over Ohio State in the Fiesta Bowl.  The University imposed some disciplinary consequences on Coach Applewhite, but he remained on the staff, and later got a pay raise. In the lawsuit, Coach Kearney alleges that Applewhite and she engaged in similar misconduct. UT was about to fire her.  Not him.

But was their misconduct “similar”?  That is the big issue that this case will have to address before it is over.  UT filed a Plea to the Jurisdiction, seeking to get the case tossed out.  That Plea was partially successful.  The Court of Appeals in Austin ruled that some of Coach Kearney’s claims should be dismissed.  However, the Court did not dismiss the “disparate treatment” claim.

A termination case based on “disparate treatment” requires proof of four key facts: 1) the plaintiff was a member of a protected class; 2) she was qualified for her position; 3) she was terminated; and 4) she was treated less favorably than similarly situated members of the opposing class.  The University’s Plea to the Jurisdiction argued that Coach Kearney and Coach Applewhite were not “similarly situated.” But the court pointed out that UT offered no evidence to back up that assertion.  “Instead,” the court notes, “the University asserts only arguments as to what the evidence would show had it offered any.”  (Emphasis in the original).

Thus: Plea to the Jurisdiction denied. The case moves forward.

We expect UT will take another shot at getting this case dismissed prior to a trial, this time bolstering its assertions with evidence to compare Coach Kearney and Coach Applewhite.  If the pre-trial motions fail, this one will be decided by a judge or jury who will answer the question: were these two employees “similarly situated”?  If they were—why were they not treated the same?

For our purposes, the case is a good reminder of the importance of applying the same standards to employees who are similarly situated.  Furthermore, employers need to be able to articulate the rational basis for any distinctions.

The case of The University of Texas at Austin v. Kearney was decided by the Court of Appeals, Third District in Austin on May 3, 2016.

DAWG BONE: IT’S OK TO TREAT EMPLOYEES DIFFERENTLY, AS LONG AS YOU CAN EXPLAIN THE RATIONAL AND NON-DISCRIMINATORY REASON FOR THAT.

TOMORROW: CAN YOU BRING A GUN INTO THE SCHOOL ADMINISTRATION BUILDING?

We have a statute in the Education Code designed to give teachers some protection when they find it necessary to use physical force with a student. Section 22.0512 of the Code tells us that professional employees may not be disciplined for the use of physical force with a student to the extent that such force is justified by the Penal Code.  That means that non-deadly physical force can be used “when and to the degree the actor [meaning, the teacher] reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.”

Dallas ISD fired Caroline Lee, a third grade science teacher, for what the district believed to be the unreasonable use of force.  However, the independent hearing examiner, Robert Prather, did not see it that way.  He recommended that Lee not be fired.  DISD rejected Mr. Prather’s recommendation, terminated Lee’s contract, and she appealed to T.E.A.

Commissioner Morath did not issue this decision, presumably because he was on the board in Dallas at the time the decision was made.  Instead, he named T.E.A. Director of Audits, William Wilson, as his designee.  Mr. Wilson overturned DISD’s decision.  Here is the takeaway quote from the Commissioner’s decision:

As a remedial statute, T.E.C. section 22.0512 is to be given the most comprehensive and liberal construction possible.  A school district has the burden to prove that an employee’s use of force is unreasonable.  It is not an affirmative defense that the employee must prove.  When an employee is using force, a district cannot take disciplinary action against an employee because she was directed by an administrator not to use force.  Likewise, when an employee is using reasonable force, a district cannot take disciplinary action against an employee because it might cause the public to lose confidence in the administration.  The use of reasonable force cannot directly or indirectly be the basis for taking disciplinary action against the employee.

I encourage you to read that entire paragraph out loud, slowly, two or three times.  There is a lot there.  The case is Lee v. Dallas ISD, decided by the Commissioner’s designee on February 16, 2016. The Docket Number is 012-R2-12-2015.

DAWG BONE: TEACHERS ENJOY PROTECTION WHEN THEY REASONABLY USE PHYSICAL FORCE WITH STUDENTS.

It sounds like Principal Gober was having a hard time communicating with teacher Sylvia Ortiz.  After multiple students sought a transfer from Ms. Ortiz’s chemistry class in Plano ISD, the principal met with the teacher. The principal directed the teacher to engage in some rapport building exercises with her students.  Ten days later, the principal issued a written memo, outlining the suggested exercises.

This is where the standoff began.  The teacher refused to sign the principal’s memo, and walked out of the meeting sans memo.  So the principal sent it to her by certified mail. That didn’t work. Ms. Ortiz failed to sign for it.  So the principal hand-carried the memo to the teacher, and attempted to deliver it to her outside of her classroom.  Nope--Ms. Ortiz would not accept the paperwork. So the principal went into the teacher’s classroom and left the papers there for the teacher.

Ms. Ortiz then filed a grievance, alleging harassment, verbal and physical aggression, libel, slander, defamation of character, bullying, intimidation, misrepresentation of facts, and the intentional creation of a hostile and intolerable working environment.

The district assigned an investigator to look into all this. The investigator asked Ms. Ortiz to sign a confidentiality agreement, which she did.  The agreement (later referred to by Ms. Ortiz as an unconstitutional gag order) stated that:

you must not discuss this investigation or inquiry, or any information that you and the investigator discuss, with other District employees (except Safety & Security or Human Resources employees) or any other person who is in any way connected to the incident or event under investigation, or who is a possible witness in this investigation. Disclosure of information pertaining to this investigation may result in disciplinary action against the disclosing employee.

The district later sought to terminate Ms. Ortiz’s employment based on numerous grounds, including her violation of this agreement. Evidence of the violation was based on a telephone conversation with a student in which Ms. Ortiz inquired about what happened when the student was interviewed as a part of the investigation.  Ms. Ortiz recorded this conversation, parts of which were used against her in the litigation.

The independent hearing examiner recommended termination of Ms. Ortiz’s employment. Plano ISD’s board voted to terminate the teacher’s contract.  The Commissioner rejected many of the reasons for termination offered by the district, but upheld the termination based on the violation of the confidentiality agreement.  The state district court upheld the Commissioner’s decision, and now, so has the Court of Appeals.

It is interesting to note that what got Ms. Ortiz fired was not related to the original concerns about her performance, but rather, her violation of a confidentiality agreement she signed off on.  Her lawyer attempted to argue that the district was infringing on her free speech rights, but the court noted that constitutional principles do not apply to confidentiality agreements that people sign.

Many school administrators seek confidentiality during an investigation of alleged employee misconduct, or employee complaints.  Here, the district put it in writing, which turned out to be a critical factor in the decision.

The case of Ortiz v. Commissioner of Education was decided by the Court of Appeals in Dallas on March 10, 2016.  Docket Number 05-14-01165-CV.

DAWG BONE: VIOLATING A CONFIDENTIALITY AGREEMENT CAN BE A BIG DEAL.