John Doe alleges that he was sexually assaulted in the school bathroom by another student when he was in “second or third grade.”  A whole 12 years later, he sued the school district.  He claimed that the district violated his constitutional rights, and discriminated against him based on disability and sex when it failed to prevent this attack.

The constitutional claim failed.  The court cited the very well established principle that a school district is not legally obligated to guarantee that a student will never be harmed by a third party.  You have to show that the district itself caused your injury, and Doe could not do that.

The sex discrimination claim (Title IX) failed because Doe had no evidence that the school district knew about the assault, either before or after.  There were no teachers in the bathroom when it happened, and the youngster did not report the assault to any school official.  He did tell his mother, but “asked his mother not to reveal the fact of the assault until he graduated to avoid the ‘scorn and shame’ that might follow if his peers learned of the attack.”

The disability claim failed for the same reason.

The most interesting part of the court’s opinion is the very brief discussion of the student’s explanation of how he was damaged by this incident. Among other things, he alleged that he was “rejected by girls he asked to school dances’ when he was in seventh grade.”

Hmmmm.  There are many 7^th grade boys who get rejected by 7^th grade girls for a wide variety of reasons.  If this one had gone to court, it would have been interesting to see what the jury would do with this factoid.  I suspect a lot of memories of 7^th grade would be stirred up.

The case is Doe v. Columbia-Brazosport ISD, decided by the 5^th Circuit on May 3, 2017.  We found it at 2017 WL 1661416.

DAWG BONE: IF IT’S A “DOE” CASE, IT’S A SEX CASE.

File this one under: LIABILITY

Tomorrow: We get a decision in the well publicized “Clock Boy” case.

There is immunity from SUIT; and then there is immunity from LIABILITY.  These are different things.

If you go to the Immunity Store to buy some immunity, (not available at Amazon or Walmart) you should ask for the immunity from SUIT. It’s probably more expensive, but it’s better.  Immunity from SUIT means they are not supposed to sue you, and if they do, the case will be promptly tossed out.  The court has no jurisdiction over the case, and the only thing it can do is dismiss it.

Immunity from LIABILITY means they can sue you, and you will have to go through all of the preliminary wrangling before the court decides that you have immunity from LIABILITY.  Then the case will be tossed out, but you will have spent some sleepless nights and probably a few thousand bucks.

Teachers who are acting within the scope of their employment are immune from LIABILITY most of the time. Thus when teachers are sued over accidents that happen in the classroom, the court will usually dismiss the case after the teacher’s lawyer has convinced the court that the teacher is entitled to immunity from LIABILITY.

This came up in a case involving an alleged injury to a student in Blum ISD. The plaintiff did not sue the district, but he sued two district employees.  The lawyer for the district employees filed a Plea to the Jurisdiction, arguing that the employees of the district were immune from SUIT, and thus the court lacked jurisdiction. The court said no—the district employees might be immune from LIABILITY, but not from SUIT. The court had jurisdiction.  The case continues.

There is a concurring opinion in this case that points out that the plaintiff claims that the injury occurred in the summer, and had nothing to do with the school or the status of the defendants as BISD employees.  So we shall see what happens as this case proceeds.  In the meantime, it provides a good lesson for school lawyers and all those lawyer wannabes out there.

The case is McPherson v. Wylie, decided by the Court of Appeals for Waco on December 14, 2016. We found it at 2017 WL 7325461.

DAWG BONE: WE MADE UP THAT PART ABOUT THE IMMUNITY STORE.  NO SUCH PLACE.

 File this one under:  LIABILITY

Tomorrow: don’t get too cheeky with your Master’s thesis….

On Monday we told you about a suit in Spring Branch ISD brought by a substitute who was greatly offended by being called “only a substitute.”  The plaintiff in that case was a sub—but at least she had been at it for a while. The court noted that she had served as a sub from 2012 until her termination in 2015.  Today’s Daily Dawg features a suit by a sub who was fired after one day on the job!!  Thus we get another nice illustration of the one rule of law that has no exceptions: ANYONE CAN SUE ANYONE OVER ANYTHING AT ANY TIME FOR ANY AMOUNT.

Mr. Scott claimed that Crockett ISD fired him due to his age, and his race, and that the district created a hostile environment and retaliated against him.  He also alleged that he had been assaulted. In one particularly interesting allegation, Mr. Scott claimed that he tried to shake hands with a man who contracted with the district and that the other guy “responded by placing him in a headlock.”  There must be more to that story…..

The district’s explanation for the termination was:

After just one day, school administrators received multiple complaint’s concerning Scott’s language and behavior while substituting this class. Several students issued handwritten letters to school officials documenting Scott’s alleged actions, and CISD attached these handwritten allegations as evidence to its motion for summary judgment.  Specifically, a student alleged that Scott made inappropriate comments concerning religion, bisexuality, suicide, and the sex slave trade. The student also accused Scott of using derogatory terms for homosexuals.

As with the Spring Branch case we reported on Monday, this one also is decided in favor of the district.  Like Ms. Silva in Spring Branch, Mr. Scott handled this case himself and his failure to comply with court procedures proved costly.  Nevertheless, the case illustrates how districts sometimes must expend significant resources defending themselves from claims by employees, even employees you hardly got to know.

 The case of Scott v. Crockett ISD was decided by the federal court for the Eastern District of Texas on March 22, 2017. The court dismissed all of Mr. Scott’s federal claims, refused to retain jurisdiction of his assault claim, and left him free to re-file that one in state court.  The court’s decision is at 2017 WL 1079549, adopting a recommendation from the magistrate judge that can be found at 2017 WL 1097214.

 DAWG BONE:  ANYONE CAN SUE ANYONE….

 File this one under: LIABILITY

Tomorrow: can I get unemployment benefits while I’m still listed as being on FMLA leave?

Can a person who is “only a substitute” tie your district up in federal court litigation?  Yes.  And the statement allegedly made by the district’s “substitute teacher specialist,” informing Ms. Silva that she was “only a substitute” probably provided fuel to the fire.

The court ultimately dismissed this case in its entirety.  The court, at that point, was as frustrated with Ms. Silva as Spring Branch ISD was in the first place. But the case illustrates how a single non-contract, “at-will” employee can bring a lawsuit that causes the district to expend resources, both financial and human.

Ms. Silva, without the assistance of a lawyer, filed suit in federal court against the district, three district administrators, a secretary and the school district’s outside legal counsel.  The suit alleged discrimination based on national origin, race, and age, along with allegations of a hostile work environment and retaliation.

What prompted all this was the district’s decision to terminate the substitute teacher based on a complaint from a parent that the sub had forced a second grader to spend a considerable amount of time on her knees in the classroom.  In fact, the district’s investigation produced written statements to the effect that Ms. Silva had “made all of the students stand and kneel all day.”

You would think that would be sufficient to justify the termination of a substitute teacher without much hoo hah.  But this is America, where anyone can sue anyone over anything for any amount at any time. Sure, the district prevailed in the lawsuit, but look at the effort it took.   The magistrate judge wrote an opinion that runs for more than 12 pages, accompanied by 214 footnotes.  214!!

The magistrate judge concluded that Ms. Silva may have been offended, and perhaps she even had reason to feel offended. But there was nothing in the case to indicate that she was treated rudely because of her age, national origin or race.  Often in a case like this, the court will allow the plaintiff to amend the pleadings to state things in a better way. But not in this case.  The plaintiff had exhausted the judge’s patience:

The court finds that Plaintiff has engaged in a pattern of contumacious and obstructionist behavior that has prejudiced Defendants’ ability to defend this lawsuit and has multiplied their legal expenses.  Plaintiff’s willful misconduct began prior to her non-attendance at the scheduled deposition date and continues to this date. The court find that its efforts to accommodate Plaintiff, to explain the legal process to her, and to warn her of the consequences of her failure to obey court orders have been utterly unsuccessful.  The more effort expended by the court and Defendants, the more Plaintiff became disruptive and disengaged. Therefore, the court finds no lesser sanction to be better suited.

Plaintiff’s entire lawsuit should be dismissed on this basis.

The case of Silva v. Spring Branch ISD was decided by the federal court for the Southern District of Texas on March 1, 2017.  The judge’s order can be found at 2017 WL 823584, approving and adopting a Recommendation from the magistrate that is at 2017 WL 818593.

DAWG BONE: SHE MAY BE “ONLY A SUBSTITUTE” BUT SHE MAKES A HECKUVA PLAINTIFF.  AND WHAT DOES “CONTUMACIOUS” MEAN, ANYWAY?  WHO USES THAT WORD?

 File this one under: LIABILITY

Tomorrow: Toolbox Tuesday!!

School districts in Texas are not liable for most of the injuries that students suffer while attending school.  We have immunity provisions in place that protect school districts from liability when kids get hurt, even when the injury is due to the negligence of a school employee, or of another student.  But there is an exception when it comes to transportation.

School districts are liable for injuries that result from the negligent use or operation of a motor vehicle by a school employee.  So T.P., a student in Arlington, probably figured that she had a pretty good case when she was thrown into the windshield of the bus hard enough to crack the windshield.  Ouch!  However, the school’s attorneys argued that the lawsuit did not properly allege that the girl was injured due to the negligent operation of the bus, but rather, due to the negligent supervision of the students. After all, she would not have been tossed into the windshield if she had not been standing in the aisle. Doesn’t that indicate that the real problem was negligent supervision?  Thus the school filed a Motion to Dismiss.

It was a good argument by the school’s lawyers.  There are numerous cases that make it clear that the district is not liable for negligent supervision—even if it happens on the bus.   Thus just because an injury occurred ON the bus does not mean that it was CAUSED BY the negligent use or operation of the bus.

The argument was a good one, but not good enough to persuade the court to toss out the case. The court held that the pleadings were sufficient to allege that the bus driver was careless in operating the bus, thus requiring an abrupt stop to prevent a collision.  That was enough to keep the case alive.

Some of you are probably wondering: but what about the fact that the girl was standing in the aisle? Doesn’t the student bear some responsibility?  The court said that it would be perfectly appropriate for the jury to consider that as a factor pointing toward “contributory negligence.” But that will come up later.  It was not reason enough to toss the case out.

Motion to Dismiss denied. Let the depositions begin!

The case of Arlington ISD v. T.P.  was decided by the Court of Appeals for the Second District of Texas, Fort Worth, on February 9, 2017.  We found it at 2017 WL 526311.

DAWG BONE: THE DISTRICT IS LIABLE FOR NEGLIGENT OPERATION OF THE BUS, BUT NOT NEGLIGENT SUPERVISION OF THE KIDS ON THE BUS.

File this one under: LIABILITY

Tomorrow: Can you pray at school board meetings?

Arthur Smith has lost his fight against Houston ISD, but what a fight he put up!  The man had a contract with the district to design and produce custom t-shirts for some of the schools in the district.  He was to produce 2,103 shirts for $12,618.  That's six bucks a shirt--pretty good deal.

But then the district told Mr. Smith he would need to share the contract with a California outfit, and Mr. Smith refused.  So HISD just cancelled his contract.

Lawsuit! Mr. Smith alleged breach of contract, copyright infringement, tortious interference with his business, defamation and racial discrimination.  That was in his original petition to the court, which he did on his own.  Later, when he lawyered-up, he dropped the racial discrimination claim, but added 12 new legal theories including conspiracy, fraud, bribery, extortion, conversion, business disparagement, intentional infliction of emotional distress and racketeering.  That's right--"racketeering."  The suit alleged that the district violated RICO--the Racketeering Influenced and Corrupt Organizations Act.  I don't know about you, but when I hear that word I think of Jimmy Hoffa--not a procurement officer in a public school district. RICO is a law passed during the Nixon Administration designed to crack down on Mafia figures like Don Corleone--not mid-level bureaucrats operating out of a 10x10 government cubicle.

None of this was successful. The copyright claim was too late; the breach of contract was in the wrong court; most of the claims were dismissed due to governmental immunity.  You may be pleased to know that a governmental unit, like a school district "is not a proper RICO defendant as a matter of law." That's the Racketeering Influenced and Corrupt Organizations Act--RICO.

The case is Smith v. Houston ISD, decided by the federal court for the Southern District of. Texas on January 17, 2017. We found it at 2017 WL 175814.

DAWG BONE: BREATHE EASY.  YOU ARE NOT SUBJECT TO RICO AND ARE NOT LIKELY TO WAKE UP WITH A HORSE HEAD IN YOUR BED.

 File this one under: LIABILITY

Anita Connally’s Whistleblower suit against Dallas ISD is barely alive. But it is alive, and provides an interesting illustration of how the courts construe the Texas Whistleblower Act.

Ms. Connally was the Director of Compliance in DISD—UIL compliance.  In 2013 and 2014, she reported her concerns about the falsification of residency records to three different internal departments within DISD: the Office of Professional Responsibility, the Internal Audit Department and the Professional Standards Office (PSO).  In June, 2014, the PSO “issued a detailed report in which it confirmed virtually all of Connally’s reports of wrongdoing.” The report confirmed that a DISD coach had falsified a district record and provided “untruthful” statements in a subsequent investigation.  The report also confirmed improper recruiting of athletes and the falsification of residency records for those athletes.

According to the lawsuit, it was the day after this report was issued when the superintendent announced that he was terminating Ms. Connally.

Hmmmm. We have a Director of Compliance who has reported multiple UIL violations internally. All of them have been verified. And now she gets fired?

The district’s position was that Ms. Connally’s reports of wrongdoing were way too late. Yes, the district acknowledged, she pointed out some problems. But the violations had already occurred under her watch. The “horses had long left the barn.”  She was the Director of Compliance, and she failed to maintain compliance.

Ms. Connally was an at-will employee, so she was not entitled to the kind of due process a contractual employee would enjoy. She did file grievances over her termination, to no avail.

Then she filed the Whistleblower suit, alleging that her termination was an act of retaliation for her good faith reports of wrongdoing.  She alleged that Dallas was embarrassed by the public disclosure of that PSO report detailing multiple UIL violations, and that the district sought to save face by scapegoating her.

The made-for-TV movie that may emerge from this will undoubtedly be more interesting than the 34-page decision from the Court of Appeals.  The court’s decision does not identify good guys and bad guys, but rather, provides a dry, technical analysis of what it takes to make a Whistleblower case.

In a nutshell, it’s harder than you think. Being a person of good heart, speaking truth to power is not enough. You have to make your report to an entity that has “outward-looking powers to investigate violations of law against third parties outside of the entity itself.” Thus those reports to DISD’s internal departments were not sufficient to invoke the Whistleblower Act.

Ms. Connally pointed out that the head of the PSO in Dallas was himself a commissioned peace officer. Would reporting to that guy be sufficient? The court said no.  The report has to go to an “entity.” Thus “the focus is not on an individual’s general status as a peace officer, but whether the individual is ‘part of’ a governmental arm or entity authorized to conduct criminal investigations.”

At this point, Ms. Connally’s case is hanging by its fingernails.  No one to whom she has reported is a “law enforcement authority” as that term is used in the Whistleblower Act, and thus the court lacks jurisdiction to even hear the case.

However, Ms. Connally also made reports directly to the DISD police chief and his assistant.  The DISD police department qualifies as a “law enforcement authority.” Unfortunately for all sides to this case, no one kept a written record of what was reported.  Thus, the litigation produced conflicting affidavits.  The cops both swore that Ms. Connally made only vague references to some troubling activity with regard to high school athletics.  Ms. Connally, however, filed an affidavit alleging that she told both of the men of forgery and/or falsification of government records.

The court concluded that the Connally affidavit failed to make out a case of “forgery” but it was sufficient to allege that DISD employees had criminally tampered with government records. Bingo. There is an allegation of an employee blowing the whistle on criminal activity. That’s good enough to invoke the jurisdiction of the court.

This one has a long way to go, but this decision keeps Ms. Connally’s case alive by finding that the suit alleges at least one instance of a good faith report of criminal wrongdoing to a law enforcement authority.  That’s what it takes to give the court jurisdiction. To win her lawsuit, Ms. Connally will also have to prove that she was fired for making that report.

The case is Connally  V. Dallas ISD, decided by the Court of Appeals in El Paso on December 21, 2016.

DAWG BONE:  GOOD FAITH.  REPORT TO A LAW ENFORCEMENT AUTHORITY.  REPORT CRIMINAL WRONGDOING.  PROVE CAUSATION. THAT’S A SUCCESSFUL WHISTLEBLOWER SUIT.

File this one under: LIABILITY

Are we serving more kids in special ed?  Or fewer?

In October, 2013, a jury awarded the Rideau family $1,000,000 in damages.  Keller ISD was ordered to pay that amount to compensate for injuries to a student with a disability and his parents.  But since that time, that big jury award has been whittled down, and now it has been wiped off the books altogether.

The case has a complicated procedural history, but the main point for today is that the court concluded that the evidence the jury heard was not sufficient for them to reach the verdict that they reached.  Some of you may be wondering: can a judge do that?  Can a judge set aside a jury verdict because the judge thinks the evidence was lacking, even though the jury does not?  The answer is yes. Judges can do that, and in this case, the judge did that.

The school district’s argument was that the evidence simply did not show “deliberate indifference.” This is a case in which a teacher was accused of mistreatment of a student with a disability.  The court did not dispute the fact that the teacher mistreated the student. But that fact is not enough to impose liability on the school district. The jury has to have evidence to show that the school knew what was happening and responded with “deliberate indifference.”  After recounting how the various administrators responded to the information they received, the court concluded that “the jury did not have a legally sufficient evidentiary basis to find that Keller was deliberately indifferent.”

“Deliberate indifference” is very hard to prove.   As the court’s opinion in this case points out, you can be “inept” and yet not be “deliberately indifferent.”  Despite that reality, administrators should remember that documentation of what you knew, when you knew it, and what you did about it is the key to showing that you were neither “inept” nor “deliberately indifferent.”

While the standard for avoiding legal liability is low (avoiding “deliberate indifference”) the standard for educator accountability should be high.  If a teacher mistreats a student, the first thing for the school administration to do is to hold the teacher accountable through appropriate consequences.  Let the lawyers worry about the legal standards for liability if it should come to that. Focus on student safety and teacher professionalism…and set a high bar for that.

The case is Plainscapital Bank v. Keller ISD, decided by the U.S. District Court for the Northern District of Texas on November 29, 2016.  We found it at 116 LRP 49954.

DAWG BONE:  WHAT DID YOU KNOW? WHEN DID YOU KNOW IT? WHAT DID YOU DO ABOUT IT?

 File this one under: LIABILITY

Tomorrow: have you ever wondered about the distinction between “counseling” and “special ed counseling”?

I expect many of you remember that great country song, “Behind Closed Doors.” The lyric reminded us several times that “no one knows what goes on behind closed doors.”  The guy singing the song seemed to be looking forward to getting behind those doors, as I recall. The song is a celebration of privacy.

A recent federal court case reminded me of the song.  It’s yet another “sex with a student” case, involving a student named “John Doe,” this time from Nevada.  The court dismissed most of the claims in the suit, but kept alive the allegation that the district had violated the student’s right of privacy.

Did school officials publicly disclose that the student was a victim of a sex crime?  No.

Did they violate FERPA by disclosing confidential records?  No.

Did they tell the media the real name of “John Doe”?  No.

What they did was they left the door open:

A reasonable jury could find that removing John from class and questioning him about such a sensitive topic in public view with a door to the office open, combined with the real possibility that doing so would result in revealing John’s identity as the victim of a sex crime, violated John’s substantive due process rights.  (Emphasis added).

The lawsuit alleged that the district routinely left the door open “with deliberate indifference” to student privacy.  The office had windows also, and the blinds were not closed. So the suit alleged that kids were able to figure this out. The teacher was soon arrested….they saw John Doe in the office for a long, long time.  It must have been him.

This case has a long way to go, but at this stage it serves as a reminder.  When questioning kids about sensitive issues, be mindful of who is present and who can see what is going on.  The case is Doe v. Clark County School District, 68 IDELR 94 (D.C. Nev. 2016).

DAWG BONE: STUDENTS DO HAVE A RIGHT OF PRIVACY

 File this one under: LIABILITY

Mr. Kominek was probably looking for a mop bucket when he opened the door to the janitor’s closet one day after school hours at Dundee Middle School in Michigan.  That’s not what he found.  What he found was Coach Neff and a girl (soon to be known as “Jane Doe, Plaintiff”) “engaging in sexual contact.”   Mr. Kominek promptly reported this incident to the A.D., who turned it over to the superintendent, who turned it over to the police and the child protection agency.  Coach Neff was later convicted of criminal sexual conduct and is currently incarcerated.  Well done, Mr. Kominek!

The parents of the girl later filed a lawsuit against the district, the superintendent and the A.D.  The suit alleged that the district and its officials should have known what was going on. The relationship between the coach and the girl had been going on for quite some time. There were rumors.  There were complaints from parents about how this particular girl seemed to get special treatment from the basketball coach.  In fact, the A.D. had previously cautioned the coach about texting players and sitting in the back of the bus with them.  Even the custodian, Mr. Kominek, had an inkling.  He testified that he had a “weird feeling” about the coach and the girl.

None of that was enough to convince the court that the school had sufficient notice of an inappropriate relationship.  One of the unique factors in this case was that the girl’s father was an assistant coach on the basketball team. In fact, the first time that Coach Neff kissed the girl was while he was watching a hockey game with the dad at the girl’s home.  The court summarized:

Doe and Neff intended to keep the relationship secret, and did so successfully until they were caught. Even Doe’s father, who was also coaching the team, was fooled. This fact gives rise to the inference that the other observers with more distant relationships to Doe were not at fault when they did not take action to remedy or report the unknown sexual activity.

Case dismissed.  But if Mr. Kominek had not reported what he saw, this case may have had a very different outcome.

The case is Campbell v. Dundee Community Schools, decided by the 6^th Circuit Court of Appeals on October 13, 2016. We found it at 2016 WL 5939880.

DAWG BONE: ALL STAFF MEMBERS SHOULD BE REPORTING SEXUAL MISCONDUCT BY STAFF.

 File this one under: LIABILITY