A federal court has dismissed the suit filed by the student in Irving ISD who was suspended and arrested for bringing a homemade clock to school.  School officials had asserted that the clock was a “hoax bomb” and thus prohibited from school campus.  The student became known as the “clock boy” and the incident made national headlines. Ultimately, Irving police acknowledged that the arrest was a mistake, but the family sued the city, the school district and the principal.

The court dismissed all of that.  As to the city and the school district, the court concluded that the pleadings in the lawsuit simply failed to connect the dots.  There was much mention of racial disparity in student discipline, along with allegations of widespread discrimination based on race and religion in the community. But the court held that much of this was “conclusory” or “speculative.” There was not enough pleading of specific facts to indicate that either the city or the school district acted with any wrongful intent in this particular case.

The court held that the principal was entitled to qualified immunity.  He did not violate legal standards that were clearly established; nor did he act in an “objectively unreasonable” manner. Key Quotes:

Principals are responsible for the safety of students and others on campus and, as part of that responsibility, often have to make decisions quickly and with little information.

This is not a situation in which a person standing in Principal Cummings’s shoes can take unnecessary risks. It would have been fatuous or nonsensical for Principal Cummings to do nothing and wait for something to occur before acting.

A principal’s fate is not so hapless that, on the one hand, by not taking action he is faced with the gruesome prospect of death or serious injury of persons had the device actually been a bomb and exploded; and on the other hand, he is faced with a federal lawsuit for denial of a student’s constitutional rights because the device turned out not to be a bomb.  Woe unto the principal who fails to act on a potential threat that later becomes a reality!  To hold Principal Cummings, or any other administrator, to this standard places him between the dreaded Scylla and Charbydis.  (Emphasis in original.  A lengthy footnote explains the Greek mythology reference).

The case of Mohamed v. Irving ISD was decided by Judge Sam Lindsay for the federal court for the Northern District of Texas on May 18, 2017.  We found it at 2017 WL 2189414.

DAWG BONE: HERE IS A JUDGE WHO DOES NOT SECOND GUESS THE PRINCIPAL.

 File this one under:  LIABILITY AND IMMUNITY

Have a great weekend, Readers!

T.J. got on the wrong bus.  The six-year old was supposed to get on the daycare bus at the end of the day, but somehow, he ended up on the regular school bus.   When the bus driver figured out that T.J. was on the wrong bus, she just put him off the bus on the side of a highway. Did we mention that T.J. was six?

In the subsequent lawsuit, T.J.’s mother alleged that Dallas County Schools should be held liable for the psychological trauma the boy suffered.  She alleged that this whole episode was attributable to the negligence and the intentional actions of Dallas County School employees.

The court tossed the case out without even hearing the entire case. The court held that the allegations in the suit—even if they all turned out to be true—would not be enough to impose liability on the DCS.

Thus we have yet another example of the immunity that Texas school districts enjoy.  School districts, including DCS, are immune from general tort liability.  The one exception involves the negligent “use or operation” of a motor vehicle.  Here, the court held that there was nothing negligent about how the bus driver handled the bus. If she was negligent, it was in the way she supervised the child. That is not a basis for legal liability for the school.

The mother also alleged that this incident amounted to an “intentional infliction of emotional distress.” This is another tort that Texas courts recognize…but not with regard to public school districts.  The Texas Tort Claims Act settles this question, by noting that districts cannot be held liable for “a claim…arising out of assault, battery, false imprisonment, or any other intentional tort.”  Texas Civil Practice and Remedies Code Section 101.057(2).

An individual school employee could be held liable for an intentional tort. But this suit was against DCS.  Case dismissed.

The case is Dallas County Schools v. Vallet, decided by the Court of Appeals in Dallas on December 8, 2016.

DAWG BONE: LET’S BE SURE TO GET THOSE KIDS ON THE RIGHT BUS!

File this one under: LIABILITY AND IMMUNITY

Tomorrow: an interesting Whistleblower case….

The Court of Appeals concluded its opinion by complimenting the “exemplary academic efforts” of two students from Vela High School in Edinburg.  The Court also extended its “admiration to their parents who have clearly supported and encouraged these students in their commendable efforts.”  Comments like that from a court are usually a consolation prize. That’s what happened here. The court complimented the parents and students as it ruled against them.

The whole thing was unfortunate. According to the lawsuit, a school counselor advised one of the students that Dual Enrollment Computer Science would be a class that was positively “weighted” so that the student’s grade would automatically have ten points added to it.  The student got a perfect score in the class, and expected that this would be counted in her GPA with the additional ten points—thus, a 110 grade rather than 100.

It turns out the counselor was mistaken.  The school administration determined that state law, regulations and local policy (EIC Local) required that class rank be based only on grades in English, Math, Science, Social Studies and Languages Other Than English.  The Computer Science class did not fit into any of those categories, and so the “plus ten” was taken away.  Parents appealed to the board to no avail.

Then the parents went to state district court and obtained an “ex parte temporary restraining order” against the district. TROs are very short in duration—just two weeks.  The next step for the parents was to convert that TRO into a Temporary Injunction.  They succeeded.  After hearing testimony over three days, the local district judge issued a temporary injunction that effectively required the school to give the student the extra ten points.  Keep in mind that this is all happening just weeks prior to graduation.

ECISD immediately appealed to the Thirteenth Court of Appeals for Corpus Christi-Edinburg. There, the arguments moved away from interpretation of EIC Local to legal doctrines of governmental immunity. The Court held that both the district and its administrators were immune from suit.  Thus the lower court actually lacked the jurisdiction to issue the injunction.

For the lawyers, this case is worth studying for the court’s analysis of governmental immunity and the limited circumstances where the “ultra vires” doctrine comes into play.

For school administrators, the case provides comforting news along with a caution. The comfort is that as long as you are acting within the scope of your employment and exercising your lawful discretion, you are generally protected not only from personal liability, but also from a lawsuit.    The caution is that we really need to be accurate in what we tell the kids about how grades will be calculated.

The case is Edinburg CISD v. Smith, decided by the Court of Appeals for Corpus Christi and Edinburg on May 26, 2016.  We found it at 2016 WL 3068119.

DAWG BONE: CLASS RANK MATTERS.  LET’S BE CAREFUL AND ACCURATE.

 File this one under: LIABILITY AND IMMUNITY

TOMORROW: CAMERAS IN THE CLASSROOM?  THEY ALREADY DID THAT IN LAS VEGAS.

“Defamation” is defined by the online dictionary as “the act of damaging the good reputation of someone.”  It comes in two forms.  If you do it in writing, we call it “libel.”  If it is purely verbal, it is “slander.”

Not all defamatory statements are legally actionable.  That’s because there are all sorts of exceptions and defenses, the most frequently cited one being: “but it’s the truth.”  In other words, if you write or say something about someone that damages their good reputation, but is true, then it is “defamatory” but it is not legally actionable.  Your suit for slander or libel will fail.

You can also say pretty much whatever you want about a person if it is couched in terms of an opinion, rather than a factual statement.  To say “Our superintendent has a criminal record” is an assertion of a fact. If the statement is not true, it could be legally actionable. But to say “Our superintendent strikes me as a shady character” is an opinion.  Not actionable.

We offer this brief primer on the law of defamation to introduce you to the case of Kirk v. Plano ISD.  Mr. Douglas Kirk felt that he had been defamed by the PISD and four of its employees.  The court’s opinion tells us nothing about the factual background, so we don’t know who said what, and why Mr. Kirk felt that he had been defamed. Acting without the benefit of legal counsel, Mr. Kirk filed a libel suit against the district along with the board president, a principal, a teacher, and the director of safety and security.

The trial court tossed the case out before it got off the ground, and the Court of Appeals affirmed that decision.  Mr. Kirk thus learned a lesson about governmental immunity.  The district’s attorneys first filed a Motion asking the court to dismiss the four individuals.  The court did so.  We have a law in Texas that requires plaintiffs to decide whether to sue the school district, or the individuals who work for the school district. You can’t do both. Citing an earlier case, the court noted that “A plaintiff must proceed cautiously before filing suit and carefully consider whether to seek relief from the governmental unit or from the employee individually because the decision regarding whom to sue has irrevocable consequences.”  Texas Bay Cherry Hill, L.P. v. City of Fort Worth.  257 S.W.3d 379 at 401 (Tex. App.—Fort Worth 2008, no pet.).

Next, PISD lawyers asked the court to dismiss the case against the district as well, claiming that the court had no jurisdiction.  Again, the court agreed with this. This was based on governmental immunity: “When a plaintiff sues a governmental entity or official, he faces the threshold hurdle of affirmatively demonstrating the trial court’s jurisdiction by alleging a valid waiver of governmental immunity.”  Mr. Kirk could not get over that hurdle.  School districts have immunity from suits based on libel or slander.  The Texas Tort Claims Act lays out the very limited circumstances in which a school district’s immunity is waived. Those involve the negligent use or operation of a motor vehicle—not defamatory statements by school employees.

The case of Kirk v. Plano ISD was decided by the Court of Appeals in Austin on February 3, 2016.  We found it at 2016 WL 462742.

DAWG BONE:  SUITS OVER SLANDER OR LIBEL AGAINST A SCHOOL DISTRICT ARE LIKELY TO BE DISMISSED EARLY ON.