If a teacher violates school policy pertaining to the use of physical force with students, the teacher can be fired….right? That would be especially true if the teacher had been reprimanded and warned previously about the use of force with kids….right?
Apparently not. Commissioner Morath has overturned the firing of Daniel Villarreal, a teacher in Edinburg ISD. The Commissioner concluded that the board’s action was “arbitrary and capricious” because the school board in Edinburg “did not use the standards set out in the Restatement of Torts, Second Edition or another valid standard to conclude that [Mr. Villarreal did not have an objectively reasonable belief that force was necessary.”
We’re guessing that not too many of you are up to speed on the Restatement of Torts. No one but law students and law professors read that tome. But it looks like we need to add Commissioner Morath to that list. In this decision, the Commissioner points out that the Restatement is “in harmony” with Texas case law regarding the use of physical force in the school setting. In that context, the following factors should be considered:
(a) The age, sex and condition of the child;
(b) The nature of the student’s offense or conduct, and the student’s motives;
(c) The influence of this student’s conduct on other students;
(d) Whether the force was reasonably necessary to compel obedience to a proper command; and
(e) Whether the force was disproportionate to the offense, was unnecessarily degrading, or was likely to cause serious injury.
We expect that most administrators would think that there are a couple of other relevant factors, such as: did the teacher violate our policy? Did the teacher disregard a directive?
The Commissioner specifically addresses those factors and blows them off. Read this carefully:
When an employee is using reasonable force, a district cannot take disciplinary action against an employee because he 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 a policy provides that force can only be used to protect a person from physical injury. The use of reasonable force cannot directly or indirectly be the basis for taking disciplinary action against the employee. While school districts can normally take action against teachers for violations of policy, if a teacher’s actions are protected by the immunity for use of force under Texas Education Code 22.0512, a school district cannot take action against the teacher for violating its policy.
So the critical issue is not whether the teacher violated policy or directives. The critical issue is whether the force used was “reasonable.”
The school administration recommended the termination of this teacher. The independent hearing officer supported that recommendation. The board voted to terminate the teacher’s contract. And now the Commissioner has reversed that decision. The case is Villarreal v. Edinburg CISD, T.E.A. Docket No. 063-R2-08-2016, decided on October 6, 2016.
DAWG BONE: VIOLATING POLICY IS NOT ENOUGH TO GET YOU FIRED IF THE FORCE YOU USED WAS “REASONABLE.”
File this one under: TEACHER TERMINATION
Tomorrow: Toolbox Tuesday looks at what to do when the behavior of the student is a manifestation of disability.