Mark Bernhard was a student in Kerrville ISD who was permanently injured when the roof of the Ag Barn collapsed on him. His lawsuit against the district and several of its employees ended up before the Texas Supreme Court in 1978, and now it serves as our Golden Oldie in the area of liability. In Barr v. Bernhard the Texas High Court held that neither the district, nor any of its employees would be held legally liable for Mark’s injuries.

The KISD enjoyed “sovereign immunity.” School districts in Texas are liable for personal injuries only if the injury arose from the negligent use or operation of a motor vehicle by a school employee or officer acting within the scope of employment. There was no motor vehicle involved in the collapse of the roof. It happened when a calf bumped into a pole that supported the roof.

What about the employees who were responsible for the Ag Barn? Wasn’t somebody negligent here? After all—roofs are not supposed to fall down on people.

The Court held that negligence of school employees was not relevant. We had (and still have) a statute in the Education Code that provides for “immunity” for school employees if they satisfy five criteria:

1. The person is a “professional employee” of the school district;
2. Acting within the scope of employment;
3. Exercising judgment or discretion;
4. Not using physical force in the act of disciplining a student; and
5. Not operating a motor vehicle.

So was anyone negligent? We will never know. The court said it did not matter. The statute provided immunity. That statute, largely unchanged, is now found at T.E.C. 22.0511.

That’s the situation under state law. However, school employees can be held personally liable for violations of federal law. Most often this arises in cases where the lawsuit alleges a violation of the U.S. Constitution. Consider, for example, the 5th Circuit’s 1994 decision, Doe v. Taylor ISD.

This was the first widely publicized “teacher-on-student” sex case in Texas. The suit alleged that a coach had a sexual relationship with the student, who was a minor. The student sued the district, the superintendent and the principal. The case settled out of court before a final disposition, but the settlement occurred after the 5th Circuit held that there was enough evidence of possible culpability by the principal that the case should go to trial. The principal was not charged with sexually abusing the student, but rather, with turning a blind eye to what the coach was doing. The court held open the possibility that the principal could be held personally liable for this.

School officials have a kind of “immunity” in federal cases, just as they do in the state cases. Many people mistakenly refer to this as “good faith” immunity. In fact, however, “good faith” is not the test. The test is not a subjective view into the principal’s thought process—it’s an objective standard. Did the principal violate principles of law that are “clearly established”? Did the principal, in other words, violate a student’s or employee’s rights in a way that any decent principal would know to be a violation? Thus you can act in complete, sincere good faith, and still be held personally liable for violating federally protected rights that are “clearly established.”

This means that ignorance of the law is no excuse. You are expected to keep up with legal developments. So it’s a good thing that you are a reader of Edlawdawg!

DAWG BONE: IMMUNITY IS NICE, BUT IT ONLY GOES SO FAR

File this one under: LIABILITY

When I think of “Grease” I think of Olivia Newton John, John Travolta, a great soundtrack and a terrific movie. But when Zachary Bickford hears “Summer Nights” or “Hopelessly Devoted” he probably will recall the moment when he was working as a stage tech on a school production of “Grease” and a large prop fell on him. According to the subsequent lawsuit, the prop crushed his spine, punctured his lungs and shattered one of his legs. This happened on opening night at Boerne ISD on November 15, 2012.

Zach sued the district in federal court, alleging that the district was negligent in many ways. The suit alleged that the stage crew was short on crew members that night; the prop had fallen down before; the drama department did not provide adequate safety guidelines or training. On top of the allegations of negligence, the suit also asserted that the district had violated Zach’s constitutional right to bodily integrity.

The federal court dismissed the case, holding that neither of these theories could succeed.

Two key points. First, the claims of negligence failed because school districts in Texas are immune from negligence claims unless they involve a motor vehicle. Zach alleged that there was “motor driven equipment” on stage that may have contributed to the accident. But that was not enough to override the district’s immunity. School districts in Texas are liable for negligence only when a motor vehicle is involved.

Second, Zach lost on his constitutional theory because this was, after all, an accident, rather than an intentional act. The suit alleged that BISD had violated the student’s constitutional right to bodily integrity. Previous cases had established that there is such a right. However, that right is never violated by negligence—there has to be an intentional act. That’s why the court pointed out that “This right appears to arise almost exclusively in the context of sexual abuse by a teacher in a school setting, where a school superintendent was deliberately indifferent to such conduct, despite receiving reports from students, teachers, and parents that the abuse was taking place.”

Accidents happen, but liability does not always follow. The case is Bickford v. Boerne ISD, decided by the U.S. District Court in San Antonio on May 26, 2016. We found it at 2016 WL 3033778. Here it is.
DAWG BONE: THE CONSTITUTION DOES NOT PROTECT STUDENTS FROM ACCIDENTS, BUT ONLY FROM INTENTIONAL INJURY INFLICTED BY A STATE ACTOR.

File this one under: LIABILITY

Tomorrow we celebrate Throwback Thursday with the Golden Oldie on employee free speech.

The suit filed by Idolinda Salinas on behalf of her son was not as silly as it sounds.  When you read that a student jumped out of a moving school bus, I’m guessing that your first reaction is that this one is completely frivolous.  But if you read the entire opinion from the Texas Court of Appeals for Austin, you may change your mind. The court ruled against Ms. Salinas, holding that the district was entitled to immunity.  But the court came to that conclusion only after a careful analysis of some good arguments.

Here’s what Ms. Salinas alleged occurred.  The driver drove past her son’s bus stop. The boy asked the driver to pull over and let him out, but she refused.  The student tried to climb out the window, but that did not work. So he walked to the back of the bus, stood by the exit door for a “significant amount of time” and then opened the back door. This triggered a buzzer, which was designed to alert the driver that someone was trying to open the back door.  The suit alleged that the boy then jumped out and sustained injuries.  The suit alleged that the driver did not see him at the rear of the bus, did not respond to the buzzer, did not see him jump out, and continued to accelerate as he did. Then she saw the boy on the ground, and pulled over.

That’s what was alleged.  Many of those alleged facts would likely be in dispute if the case went to a trial. But it did not go to a trial. The district moved for dismissal of the suit based on its immunity. Under those circumstances, the court is required to treat as true all of the facts as alleged.

So the case presents this question: if a school bus driver negligently fails to supervise the kids, fails to notice that a student is trying to open the rear door, fails to respond to the buzzer that goes off when the rear door is ajar, and fails to see a student actually jump out of the bus, is the school district liable?  The court said “no.”

Texas school districts are liable when a bus driver is negligent in the “use or operation” of the bus and the injury “arises from” that negligence.  Here, the plaintiff accused the driver of negligence in supervising the kids, but not in the “use or operation” of the bus.  Moreover, there was an insufficient “nexus” to show that the injury of the student “arose from” the alleged negligence of the driver. After all, the direct cause of the injury had nothing to do with a buzzer or an open rear door. The direct cause was the jump from a moving vehicle.

We don’t know from this opinion how badly hurt the student was.  However, the court’s final paragraph tells us that the plaintiff “suffered terrible injuries.”  By way of a semi-apology, the court noted that “the legislature has enacted only a narrow waiver of governmental immunity.”  This case failed to make it through that narrow waiver.

The case of Austin ISD v. Salinas was decided by the Third Court of Appeal in Austin on April 14, 2016.  We found it at 2016 WL 1566707.

DAWG BONE: NEGLIGENCE IN SUPERVISING THE KIDS ON THE BUS IS NOT THE SAME AS NEGLIGENCE IN THE “USE OR OPERATION” OF THE BUS.

Have you heard of the federal False Claims Act?  While the FCA has nothing to do with education, it can be used as the basis of a lawsuit against a school district, as has happened in Tangipahoa Parish, Louisiana.

The FCA is designed to prevent the misuse of federal funds. It imposes liability on those who make false claims to federal funds, (ever heard of Medicaid fraud?) or misappropriate them.  Thus any recipient of federal funds is a potential target under the FCA.  Moreover, the FCA has its own “whistleblower” provision.  A person who is punished in retaliation for reporting, or seeking to prevent, the misappropriation of funds may have a federal cause of action.

In Tangipahoa Parish, a JROTC instructor alleged that he was harassed, badgered and ultimately transferred to another school, more than an hour away from his home.  He alleged that all of this came after he reported what he believed to be a misappropriation of JROTC funds by the school that he worked for.  He filed suit under the FCA, and the 5^th Circuit recently held that he had adequately plead his case, thus denying the school’s Motion to Dismiss.

The school tried to get the case tossed out by noting that the higher-ups in the district were completely in the dark about this.  The plaintiff did not allege that the superintendent or the members of the school board had any knowledge of any financial hanky panky.  The plaintiff’s allegations only reached as high as the principal.  Can the district be held liable because of something the principal did?  Yes.  The court held that it was “plausible that [the principal] was acting within the scope of his employment, or at the very least, with the apparent authority of the School Board.”  That was enough to put the school board in play as a potential defendant in the case.

For the lawyers, this case is important because of its broad interpretation of vicarious liability under the FCA. Under this decision, school districts face potential liability based on wrongdoing of a campus principal, even when the superintendent and board are completely innocent.  This is not how things usually work in federal cases.

For educators, the case is important because it gives us an example of another type of “protected activity.”  We must be sure not to retaliate against someone based on “protected activity.”  So if someone reports what they honestly believe to be a misappropriation of federal funds, be sure to take it seriously.  Investigate.  Make a decision based on the results of your investigation.  And whether the claim has merit or not, do not take any retaliatory action against the person who reported it.  Be sure the people you supervise also refrain from any retaliatory action.

The case of U.S. ex. rel. Bias v. Tangipahoa Parish School Board was decided by the 5^th Circuit on March 9, 2016.  It can be found at 2016 WL 906227.

DAWG BONE: MAYBE YOU THOUGHT FCA WAS THE FELLOWSHIP FOR CHRISTIAN ATHLETES.  IT IS.  BUT IT IS ALSO THE FALSE CLAIMS ACT.

Mary King-White alleges that her daughter was sexually abused by a dance instructor employed by Humble ISD.  The lawsuit alleged that this started in the spring of 2009, when the girl was 16, and continued until she graduated in 2011.   More than two years later, the mother and daughter sued the dance instructor, the district and certain district officials.

According to the 5^th Circuit, that was too late to pursue a suit against the district or its officials under Title IX or 42 U.S.C. Section 1983. Thus the district and its officials were dismissed from the suit without the court ruling on the substance of the allegations. Instead, the case was decided pursuant to the statute of limitations.

Neither Title IX nor Section 1983 contain a federal statute of limitations, and so the courts apply a comparable state statute.   In particular, courts are supposed to use the “general or residual” statute of limitations under state law.  Here, that is Section 16.003 of the Texas Civil Practice and Remedies Code, which calls for a two-year timeframe for personal injury cases.

The plaintiffs argued that the case did not “accrue,” and thus the two-year countdown did not start,  until long after the girl’s graduation when they obtained more information about HISD policy and practice. The court disagreed.  The case “accrued,” according to the court, when 1) the plaintiff became aware of the injury; and 2) the plaintiff became aware of “causation, that is, the connection between the injury and the defendant’s actions.”   This means that the plaintiff is aware of “circumstances that would lead a reasonable person to investigate further.”

The court pointed out that the girl certainly knew that she was being abused by a teacher.  And the mother had complained about the relationship to school officials while the girl was still in school—so she must have known something was amiss. On top of that, as the court emphasized, the daughter actually lived with the dance instructor, with the mother’s consent.  Thus the court concluded that the cause of action accrued long ago. The statute was “tolled” until the girl turned 18, but the suit was filed more than two years after that. Case dismissed.

The case is King-White v. Humble ISD, decided by the 5^th Circuit Court of Appeals on October 20, 2015.  We found it at 2015 WL 6159761.

DAWG BONE: TITLE IX AND SECTION 1983 CLAIMS IN TEXAS HAVE A TWO YEAR STATUTE OF LIMITATIONS.

Thank God for Mississippi!  The Magnolia State continues to provide us with interesting and enlightening court cases that make for important judicial rulings.  The latest involves the toxic combination of cheerleaders and Facebook.

The captain of the cheerleading squad reported to the sponsor that a freshman cheerleader had cursed at and threatened her on the bus ride coming back from an event. The captain said that the verbal abuse turned to cyber abuse via Facebook later that evening.

The sponsor called the squad together and gave them a lecture about the risks and dangers in the use of social media.  She also “requested” that each member of the squad give her their Facebook username and password.  That’s where the legal issue arose.

After reviewing Facebook messages from the freshman (soon to be known as “the plaintiff”) to the captain, the sponsor suspended the girl from the squad for two weeks.  The principal and superintendent upheld the sponsor’s decision.  So the plaintiff sued all three of them, alleging that her constitutional rights had been violated in a variety of ways.

The recent decision from the 5^th Circuit focuses on a narrow issue.  It does not tell us whether or not it was OK for the sponsor to review Facebook messages that were done off campus and away from school.  It does not tell us if it was OK for the sponsor to ask the students to disclose their login information. The issue was: did the sponsor do something that was “clearly established” as being unconstitutional at that time?

Thus the court had to get into the time machine and travel back to 2007 when these events occurred.  Would a cheerleader sponsor at that time know that requesting a student’s Facebook information was unconstitutional?  Would a principal know that? Would a superintendent know that? The court said: No. The law in 2007 was not “clearly established” on this point. Therefore, none of these school officials can be held personally liable.  They are all entitled to “qualified immunity” due to the murkiness of the law at the time they took action.

Thus, a narrow decision that does not answer the bigger questions.  But no doubt it is good news to three Mississippi school officials.  The case is Jackson v. Ladner, decided by the 5^th Circuit on September 15, 2015.  You can find the case at 2015 WL 5332664.

DAWG BONE: QUALIFIED IMMUNITY PROTECTS SCHOOL OFFICIALS WHEN THE LAW IS MURKY AND UNCLEAR.

There has been a lot of litigation over the past several years over student suicides.  All of the cases are tragic and difficult to study.  Most of them deal with allegations that the suicide was the result of bullying based on disability or sex or sexual orientation.  The latest to reach a high level court had nothing to do with those issues.

Jake was a senior in Marysville, Michigan, just a few months from prom, graduation and enrollment at Michigan State. There is no hint of bullying in the case.  The suit was brought against the district, the principal, the assistant principal and the acting superintendent. The suit alleged, among other things, that the defendants should be held liable for Jake’s death due to the “state created danger” theory.

The 6^th Circuit held that the state created danger theory was not applicable.  The court cited earlier cases in which it had rejected this theory in a suicide case. The court observed that “where a person makes a free and affirmative choice to end his life the responsibility for his actions remains with him.”

What happened?  This all started with a laptop, stolen from a teacher.  Jake admitted that he had taken it.  School officials imposed a long term suspension.  Jake was sent home in the custody of his father.  Later that day, he apparently slipped out of the house and took off in his car.  At 8:30 that evening, local police reported to the parents that Jake had driven his car into a concrete pillar.  The car caught fire.  Jake never got out.  The medical examiner ruled it a suicide.

The court distinguished this case from an earlier one in which a school sent a “mentally unstable” student home, knowing that he would be unsupervised and had access to firearms.  This was quite different.  The school released Jake to his father, and the young man remained under the supervision of his father or grandfather for several hours before he slipped out.

The case is Jahn v. Farnsworth, decided by the 6^th Circuit Court of Appeals on June 29, 2015.  We found it at 2015 WL 3938035.

DAWG BONE: “STATE CREATED DANGER” WILL RARELY APPLY IN A SUICIDE CASE.