The U.S. Supreme Court has already decided that there is no “private cause of action” authorized by FERPA (Family Educational Rights and Privacy Act).  For you lawyers and lawyer wannabes, that happened in Gonzaga University v.  Doe, 536 U.S. 273 (2002). That means that even if you violate FERPA by improperly disclosing confidential student information, no one will be able to sue you over the FERPA violation. The court would dismiss any suit like that.

But lawyers are a creative lot.  A lawyer in New York has figured out a way around the Gonzaga case. The lawyer took a routine FERPA violation and called it a violation of the constitutional right of privacy, protected by the Due Process Clause.  So far, this has worked.  The federal district court in New York held that the Director of Pupil Services could be held personally liable for violating the Due Process Clause.

How did this happen?  The IEP Team had already agreed that the student needed to be served in an out-of-district program.  The Team identified five programs that could possibly serve the student, and asked the parents for consent to send information to these programs. The parents did not give consent. Instead, they asked for more information about the five programs before they would give consent.

The director sent the referral packets anyway, albeit with a lot of personally identifiable information redacted.  The court was not convinced that the redactions went far enough.

Thus the allegation in the lawsuit is that the Director sent out referral packets containing confidential medical and educational records without parental consent and against specific parental direction.   The court held that this allegation, if proven true, would be a constitutional violation.  Moreover, 2^nd Circuit authority made it a violation of a legal principle that was “clearly established,” thus opening the door to personal liability for the director. Key Quote:

Thus, in alleging “the disclosure of confidential educational and medical records without consent and against the express identification of the lack of consent from [the student’s] parents,” Plaintiffs have plausibly pleaded a violation of a constitutionally protected interest.

What about the fact that information was redacted?  Tune in to tomorrow’s Dawg for more on that.

The case is W.A. v. Hendrick Hudson Central School District.  We found it at 67 IDELR 178 (S.D.N.Y. 2016)

DAWG BONE: FERPA VIOLATION MAY BE MORE THAN A FERPA VIOLATION.  IT MIGHT BE A CONSTITUTIONAL PROBLEM

 File this one under: LIABILITY

Tomorrow: did we redact enough?

Ever since the landmark case of Doe v. Taylor ISD, school officials have been on notice that there are certain kinds of rumors that should not be ignored.  Specifically, it is dangerous to ignore rumors that a school employee is sexually involved with a student.  The latest lesson along these lines is the very short, bare bones decision from the 5^th Circuit in the case of Terry v. Kinney.

The issue before the court was the Motion to Dismiss filed by three school officials. The suit alleged that all three were supervisors of the teacher/coach who had plead guilty to having an “improper relationship” with a student.  The suit alleged that all three of these defendants were aware of what was going on, and responded with deliberate indifference.  The suit alleges that one of the three defendants “was told by [the student] herself about rumors that [the student] was pregnant with [the teacher/coach’s] child.”  Another defendant allegedly “knew of the multitude of rumors concerning….[the teacher/coach] having an improper sexual relationship.”  The suit further alleges that each of these two defendants “failed to take action in response to the rumors.”

This suit has a long way to go, but at this stage, the court held that there was enough for the case to go forward. The Motion to Dismiss was denied.  The plaintiff will have the opportunity to prove the truth of those allegations about the supervisors.

When I was a young lawyer, the conventional wisdom was that we did not take action with regard to rumors.  I think that continues to be good advice…about many kinds of rumors.  But when the rumors are about a sexual relationship involving a school employee and a student, a supervisor ignores rumors at his or her peril.  When you hear rumors about something like this, ask yourself: “if this turns out to be true, how serious is it?”

If the answer is: “very serious,” then go to work.  Track down those rumors. See if there is truth behind them.  Take action. Document what you are doing.

The case is Terry v. Kinney, decided by the 5^th Circuit Court of Appeals on September 22, 2016.

DAWG BONE: RUMORS COME IN ALL SIZES AND SHAPES.  KNOW WHICH ONES MATTER.

 File this one under: LIABILITY

According to the lawsuit, there were 22 middle school girls who were subjected to a “strip search” as school officials looked for another student’s money that had gone missing.  The suit alleges that the girls were “checked around the waistband of their panties and under their shirts. They also had to loosen their bras and lift their shirts, which exposed them from the shoulder to the waist.”  The suit was filed against the Houston ISD on behalf of two of the girls.

The court dismissed it.  I’m guessing that this may surprise some of you. But this is yet another example of how difficult it is to pin legal liability on a school district for the questionable decisions made by its employees.  This was a suit against the employer—not the employee who ordered the strip search.  In suits against a private business, the courts embrace the legal theory of respondeat superior,  a Latin phrase that is roughly translated as “that truck driver that ran into you makes $32,000 a year—let Wal-Mart pay for the damages.”  So in private business, the employer is usually legally liable when an employee does something wrong.  Not so with governmental entities.

The Supreme Court decided long ago that governmental entities could not be held liable for violations of federal law under the respondeat superior theory.  Therefore, Houston ISD is not going to be held liable when one of its employees violates a student’s constitutional rights.  You have to prove that the official policy of Houston ISD was the direct cause of your injury.

That’s hard to do.  In this case, the court quoted the HISD official policy about searches and seizures.  Guess what: It does not authorize mass strip searches of adolescent girls while pursuing a small amount of money. Of course, it does not prohibit them either, which is a point that the plaintiffs made.  But the policy basically regurgitates the federal standards for searching kids in a public school—standards that have been approved by the U.S. Supreme Court.  Good enough.

The plaintiffs also tried to show that there was a widespread, common practice of illegal searches that the school board should have known about. The plaintiffs claimed that they found evidence of 23—23!!—strip searches. That was a tad misleading.  Twenty-two of those were the 22 girls searched in this one episode. So there was no evidence of the type of widespread, persistent, well known custom that could be attributable to the school board.

The case is Littell v. Houston ISD, decided by the federal court for the Southern District of Texas on September 30, 2016. We found it at 2016 WL 5661702.

DAWG BONE: DON’T TAKE THIS TO MEAN THAT IT’S A GOOD IDEA TO STRIP SEARCH 22 STUDENTS. 

 File this one under: LIABILITY

Tomorrow: Our team loses again. Sigh.

Let’s consider the possible consequences that may result when a teacher has sex with a student.  I can quickly think of at least five:

1. The teacher might be fired.

2. The teacher’s certificate might be revoked.

3. The teacher may be prosecuted for a crime.

4. The teacher may face a civil lawsuit.

5. The school district may face a civil lawsuit.

We don’t know all of what happened to teacher Willie Moorhead after his alleged sexual encounter with a fourteen-year old student.  Maybe he was fired.  Maybe he is no longer a certified teacher in Mississippi.  Maybe he was prosecuted.  But we do know that he was sued in federal court, and so was the school district.

The court dismissed the case against the school district for multiple reasons. Obviously, the school’s official policy frowned on any inappropriate activity between teachers and the kids, so the plaintiff had to make the case that the district “tolerated a pattern of sexual misconduct between teachers and students that was so well-settled that it constituted a custom that fairly represented [district] policy.”  The allegation was that the district was too lenient on offending teachers, which led to a pattern of abuse.

The evidence fell short of that, and thus the case was dismissed. The testimony of the HR Director was supportive of the district’s position that it investigated incidents, and took appropriate actions.

The parent sued Mr. Moorhead also, and the court tells us that Mr. Moorehead never responded to the suit. Not responding to a suit is a very dangerous thing to do. Your lawyer would never recommend that.  The court invited the plaintiff to seek a default judgment promptly.

The case is Floyd-Evans v. Moorehead, decided by the federal court for the Southern District of Mississippi on September 26, 2016. We found it at 2016 WL 5374148.

DAWG BONE: FAMILIAR LESSON: INVESTIGATE; TAKE APPROPRIATE ACTION; DOCUMENT.

File this one under: LIABILITY

Tomorrow: a strip search of 22 middle school girls. Yikes!

Last week we told you about the horrific case from Pennsylvania in which the plaintiff alleges that a kindergarten teacher released a five-year old to a stranger, who sexually assaulted the child.  The Third Circuit held that the facts as alleged were sufficient to impose personal liability on the teacher for the sexual assault of the student. Today, we will focus on the court’s reliance on the “state created danger” theory of liability.

Background: the general rule is that the state is not required to protect all of us from all forms of harm.  If I am injured due to the actions of a private party, I should look for recourse from that individual—not from the police department that failed to protect me.  Our Constitution protects us from the government—not from each other.

That’s the general rule. One exception to the general rule is the “state-created danger” theory.  This theory of liability has not been accepted by all of our Circuit Courts.  Importantly, the 5^th Circuit, where we live, has not adopted it. The closest it came to recognizing this type of legal theory was in the litigation that resulted from the Texas A&M Bonfire tragedy in 1999.

Nevertheless, lawyers in Texas need to know about this theory. It keeps coming up, has been adopted by several Circuit Courts, and will continue to be pressed as a viable cause of action here in Texas.

In this case, the court identified four necessary elements in a “state-created danger” case:

1. The harm ultimately caused was foreseeable and direct;

2. A state actor acted with a degree of culpability that shocks the conscience;

3. A relationship existed between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s act, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and

4. A state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.

In this case, the court concluded that the facts—as alleged—satisfied all four elements.  Releasing a five-year old to someone we don’t know, and who fails to provide any identification, “shocks the conscience” of the court.

The 5^th Circuit decided a case in 2012 with facts that may be even worse, and yet, it decided there would be no liability. The case involved a nine-year old who was allegedly released to a man claiming to be her father, but who actually had no relationship to the child and was not listed on the “check out” card. This happened not once, but six times. The suit alleged that the man sexually assaulted the child each time, and then brought her back to school. This was not bad enough for the 5^th Circuit to recognize the “state-created danger” theory.  Doe v. Covington County School District, 675 F.3d 849 (5^th Cir. 2012, en banc).

I have no explanation for that other than the obvious: different judges view things differently.  Present two judges with identical fact situations and one will rule for the plaintiff, while the other goes for the defendant. It’s just the nature of the law.

This Pennsylvania case is L.R. v. School District of Philadelphia, decided by the 3^rd Circuit on September 6, 2016.

DAWG BONE: STATE-CREATED DANGER THEORY WILL KEEP COMING UP.

File this one under: LIABILITY

Tomorrow: Toolbox Tuesday!!

The most likely person in a school district to be named as a defendant in a lawsuit is the superintendent. The least likely to be sued is the kindergarten teacher. But a kindergarten teacher in Philadelphia has been sued personally. And the 3rd Circuit Court of Appeals has held that the teacher may be held personally liable for violating a student’s constitutional rights.

This case is noteworthy for two reasons. First, it is one of the few in which a court refuses to grant “qualified immunity” to an educator. For educators, this is the main “takeaway” from today’s post. Secondly, this case endorses the legal theory of “state created danger” as a vehicle for imposing liability on school districts and school officials. This point will be of more interest to the lawyers than the educators, and we will expand on this next Monday.

What happened? The suit alleges that the kindergarten teacher allowed an unauthorized adult to take a five-year old out of class. The adult showed no identification. School policy did not allow this person to take the child out of class. The teacher asked for ID and the adult did not produce any. But the teacher allowed the adult to take the child out of class anyway. The adult sexually assaulted the child later that day. None of these allegations have been proven in court, but this is what the suit alleges. The teacher’s attorney filed a Motion to Dismiss the case, arguing that even if these facts turn out to be true, the teacher is protected by “qualified immunity.”

In its opening paragraph the court notes that teachers are usually protected from personal liability by the doctrine of “qualified immunity.” But the court also noted that “there are exceptions and this is one of those cases.” Here is the Key Quote:

We hold that the parent’s allegations sufficiently state a constitutional violation of the young child’s clearly established right to be free from exposure by her teacher to an obvious danger. In short, we conclude that it is shocking to the conscience that a kindergarten teacher would allow a child in his care to leave his classroom with a complete stranger.

It would be a good idea to double down on staff training on this issue. Let’s not let kids walk off with someone who is not authorized to take them.

The case is L.R. v School District of Philadelphia, decided by the 3rd Circuit Court of Appeals on September 6, 2016.

DAWG BONE: DOUBLE CHECK ON YOUR PROTOCOLS FOR TAKING KIDS OUT OF SCHOOL.

File this one under: LIABILITY

Tomorrow: When will this miserable football season end????

Like most school districts in Texas, Victoria ISD has a policy that permits employees to have electronic communication with students. A parent in Victoria alleged that it was that policy that caused the sexual harassment of her daughter. But the court dismissed the suit, making the obvious point: it wasn’t the policy of the district that caused the harassment. It was an employee’s violation of that policy.

Victoria ISD had adopted the same version of TASB Policy DH(Local) that many districts have adopted. It permits electronic communication with the kids, but only about school matters. Moreover, the policy notifies employees that they could be fired for improper use of e-communication, such as any kind of sexual harassment, or an effort to create a romantic relationship or any other “inappropriate social relationship.” In other words, there was nothing wrong with Victoria’s policy.

Jesse Earl Holmes, an athletic trainer at Victoria East High School, violated the policy. When reports of this reached the school, swift action followed. Mr. Holmes met with the superintendent on October 11, 2012 and resigned. He was later convicted of sexual assault of a minor and sentenced to prison for 15 years.

This lawsuit was not against Mr. Holmes. It was against the district. And that’s why the lawyer had to try to make a connection between the policy and the student’s injury. School districts are not liable in court just because they employed someone who committed a crime. They are liable if they have a policy that directly caused harm. That was certainly not the case here.

The case is Brown v. Victoria ISD, decided by the federal district court for the Southern District of Texas on May 12, 2016. We found it at 2016 WL 2758036.

DAWG BONE: MAKE SURE YOUR EMPLOYEES UNDERSTAND AND COMPLY WITH DH LOCAL!

File this one under: LIABILITY

Tomorrow: Toolbox Tuesday!!

On Tuesdays here at the Daily Dawg we like to discuss something about special education discipline and related topics. Those issues are the focus in our firm’s one-day Toolbox Training.  When I do the Toolbox, I often get questions about personal liability. Suppose we have a student that we know has violent tendencies. The kid hurts someone. We failed to prevent it. Who will be held liable for this?

If that question interests you, you should sign up for the audioconference our firm is producing on September 14^th.  From 10:00 to Noon that day, attorneys Paula Maddox Roalson and Todd Clark will present: PERSONAL LIABILITY IN SPECIAL EDUCATION: HOW WORRIED SHOULD I BE?  You can sign up for this audioconference at the firm’s website: www.walshgallegos.com.

There are lawsuits against individuals in the special education department.  In fact, there has been a noticeable uptick in suits naming as a defendant the director of special education, or an assistant superintendent in charge of curriculum.  But that just proves the old adage that “anybody can sue anybody over anything at anytime.” The more important issue is: will someone or some entity be held liable?

That’s far too complex a subject to address in one Daily Dawg—which is why I encourage you to sign up for Paula and Todd’s audioconference.  But while I have your attention, let me just make one point: when you hear stories of lawsuits and liability, be sure to notice where the case is coming from. State laws vary a great deal on this topic.

For example, I recently read Fernandez v. City of New York, 68 IDELR 50 (N.Y. Sup. Ct. 2016). In that case, a student “violently attacked” a bus aide. The aide sued the city and the school district, alleging that this attack caused her to have at least five surgeries and to be repeatedly hospitalized for depression and suicidal tendencies. She further alleges that she is now wheelchair bound, totally disabled and requires constant care.  The student who inflicted all this damage was five years old.  Yikes.

The various defendants tried to get the case tossed out of court, but that did not work. The New York Supreme Court held that there was the potential for liability here.  The case would have to go to trial.

But here’s the critical distinction.  The New York case happened in New York and is governed by New York state law.  Cases in Texas would be governed by Texas law, which provides immunity for school districts in tort cases like this, as well as immunity for school employees in most situations.  If the same fact situation occurred in Texas, it is highly unlikely that the school district or the individuals who work for the school would face personal liability.

That’s how tort cases work under state law. The more complicated issue is personal liability for violations of federal law.  Do you want to know about that?   Check out Paula and Todd’s audioconference.

DAWG BONE: TORT SUITS ARE BROUGHT UNDER STATE LAW.  NEW YORK NOT THE SAME AS TEXAS.

File this one under: LIABILITY

Thirty-eight kids pooled their resources to rent a party bus for the Junior/Senior Prom for Jensen Beach High School in Florida.  The kids took the bus to a restaurant for a pre-Prom dinner, and then to the Civic Center for the Prom. But they got to the Prom late.  No one was supposed to be admitted after 10:00, and the bus arrived at 10:15.

We’re guessing that if the principal had a do-over on this one, he would have just told the kids to go home—they were too late.  But that’s not what happened.  School officials decided to let the students attend their Prom, but only after a quick search of the bus.

The search turned up an empty champagne bottle and 12 plastic cups.  Looks like someone has been drinking. The bus driver said it must have been the kids. The kids said the bus had not been cleaned up when they got on board—must have been the previous occupants.

In any event, school administrators decided to conduct breathalyzer tests on all 38 kids.  But there was a problem.  The only assistant principal certified to administer these tests had gone home. And they only had two mouthpieces.

The principal called the A.P. and asked her to return, and dispatched someone else to the high school to gather up more mouthpieces.  Meanwhile, our 38 students were told they could not go into the building, nor could they go home.

Then it started to rain, which greatly increases the likelihood that this will be made into a “made for TV” movie.  Here’s how Haley O’Hanna (soon to be known as “the Plaintiff”) described the situation:

So we were outside in our prom dresses and there was no cover. We were outside in our prom dresses and our tuxes, all, and it’s like starting to drizzle.  I know drizzling doesn’t sound that bad, but when it gets about an hour and a half, it’s a lot.  Especially when my hair is all done.  I have a beautiful dress on. So that kind of stunk.

Finally, the breathalyzer-test-certified A.P. got back and the mouthpieces arrived and the school began administering the test to each student.  That’s when the school officials made another critical decision: No one goes into the prom until ALL 38 students are tested.

It’s not clear exactly when the testing was completed, but it was pretty close to midnight, which is when the Prom ended.  So in effect, none of them got to attend their Prom.  Nine of the students sued the district, the high school, the principal, the A.P., the Dean of Students and SRO and the county sheriff.

Oh, one other thing: all 38 kids blew a 0.00—no alcohol in the blood.

The students made two legal arguments: 1) the search of the bus was illegal; and 2) they were illegally detained.

The court held that the search of the party bus was legal.  The students did not have a legitimate “expectation of privacy” there. When they disembarked, they left nothing on the bus. So there was no privacy interest at stake. On top of that, the bus driver consented to the search.

As for the detention, the court split this into two parts.  Keeping the students waiting for the mouthpieces and the A.P. was reasonable and, therefore, legal.  The court reasoned that the school had a reasonable suspicion of drinking on the bus, sufficient to conduct a “minimally intrusive” search like a breathalyzer. Furthermore, the students had signed a form in advance of the Prom, acknowledging that they might be subjected to a breath test.  Keeping the kids waiting for this for 45 minutes to an hour was reasonable.

However, the court found fault with the decision to hold all 38 kids out of the Prom until all were tested:

We now hold, when government officials need to conduct breathalyzer or urine tests on students, the testing must be accomplished in a reasonably expeditious time period; once exonerated by the test, the student must be free to go.

When a student is tested as alcohol or drug free, there is no justification for continuing to detain the student with such definitive exculpatory evidence.

Thus the court held that the school officials had unconstitutionally detained these kids for longer than necessary. Then the court turned around and held that no one would be held liable for this error.  Since there was no prior case law, no binding legal precedent in place, the school officials were operating in uncharted territory. They were, therefore, entitled to qualified immunity.

The case is Ziegler v. Martin County School District, decided by the 11^th Circuit Court of Appeals on July 28, 2016.

DAWG BONE: DETAINING STUDENTS LONGER THAN NECESSARY MAY LEAD TO TROUBLE.

File this one under: LIABILITY

Fort Worth ISD fired assistant principal Joseph Palazzolo in the fall of 2010.  Mr. Palazzolo sued, alleging that the district was retaliating against him for being a whistleblower.   The jury agreed with Mr. Palazzolo and rendered a verdict in his favor with damages that added up to $2,146,352.09.  How many years does an assistant principal have to work to earn that much?

The trial court issued a judgment against the district for that amount, along with attorneys’ fees.  On July 7, 2016, that judgment was reversed. The Court of Appeals held that the trial judge goofed when he failed to instruct the jury to answer an important question: would Fort Worth have fired the man for reasons unrelated to his whistleblowing?

The Texas Whistleblower Act was the basis for the suit, with Mr. P claiming that he was fired for reporting in good faith what he believed to be violations of the law. But the district claimed that there were six very specific reasons for the termination of the man’s employment, ranging from falsifying information on his application to creating a hostile work environment to inappropriate physical contact with a student.   The Whistleblower Act says:

It is an affirmative defense to suit under this chapter that the employing state or local governmental entity would have taken the action against the employee that forms the basis of the suit based solely on information, observation, or evidence that is not related to the fact that the employee made a report protected under this chapter of a violation of law.

So this case was a classic factual dispute, with the A.P. claiming that he was fired for his whistleblowing, while the district claimed that that had nothing to do with it.  The Court of Appeals concluded that the affirmative defense offered by the district should have been directly presented to the jury in the form of a question.  The judge did not give the jury that instruction and thus….poof—there goes that enormous verdict.

The case is Fort Worth ISD v. Palazzolo, decided by the Court of Appeals for the 2^nd District, Fort Worth, on July 7, 2016.  We found it at 2016 WL 3667867.

DAWG BONE:  IF YOU WERE GOING TO GET FIRED ANYWAY, YOU MAY NOT SUCCEED ON YOUR WHISTLEBLOWER CASE.

File this one under: LIABILITY

Tomorrow: A case that turns on how far down the legs the underpants went. No kidding.