LEGAL DEVELOPMENTS

BUSINESS TRANSACTIONS

Competitive Bidding

DID THE SCHOOL DISTRICT DISCRIMINATE AGAINST THE BANKRUPT COMPANY?

Case citation:  Devon Enterprises, LLC v. Arlington ISD, __ Fed. Appx. __, 2013 WL 5526699 (5^th Cir. 2013).

Summary:  Devon Enterprises, LLC, doing business as Alliance Bus Charters, was a charter bus company providing bus services to Arlington Independent School District, and others.  In October of 2010, the company filed a petition in bankruptcy under Chapter 11 of the U.S. Bankruptcy Code.  Around the same time, the district began accepting bids for its charter bus carrier contract for the 2010-11 school year.  Devon submitted a bid for the contract.  In reviewing the bid, the district’s director of purchasing noticed that the company had reported an injury accident to the U.S. Department of Transportation during the previous reporting period.  Shortly thereafter, an employee of a competing charter bus company informed the district that Devon had a petition in bankruptcy.  The district also was aware that, on one occasion, a Devon bus had broken down, leaving students stranded in El Paso.  In addition, Devon had difficulty maintaining a valid certificate of insurance on file.  The district did not select Devon as the charter bus carrier for the 2010-11 school year.

In December of 2010, the district’s associate superintendent for finance sent an email to the district’s superintendent stating that she confirmed that Devon was the company that the district did not award a bid to for charter bus services “because they are currently in bankruptcy.”  Devon later filed suit against the school district alleging violations of the Bankruptcy Code, 11 U.S.C. § 525(a) and Texas competitive procurement procedures, Texas Education Code § 44.031.  The company claimed that the district discriminated against it solely because it had recently filed for bankruptcy.  The school district requested judgment in its favor prior to trial on each of Devon’s claims and the trial court granted that request.  [See, Devon Enterprises, LLC v. Arlington ISD, 2012 WL 6200229 (N.D. Tex. 2012)(unpublished); Texas School Administrators’ Legal Digest, March 2013].  Devon then appealed to the Fifth Circuit Court of Appeals.

Ruling:  The Fifth Circuit reversed the trial court judgment in favor of the school district and returned the case to the lower court.  Under § 525(a) of the U.S. Bankruptcy Code, a governmental unit may not discriminate against a person “solely because such bankrupt or debtor is or has been a debtor under this title . . .”
In this case, the trial court disregarded the associate superintendent’s email confirming that Devon was the company that the district did not award a bid for bus services “because they are currently in bankruptcy.”

According to the appeals court, the trial court erred when it classified that statement as a “stray remark” and excluded it from evidence.  The remark was “written by a person involved in the decisionmaking chain at a time reasonably near the decisive events.”  The appeals court considered the statement relevant because it made the district’s alleged discrimination more or less likely and was of consequence in determining whether the district denied the bid solely because of Devon’s bankruptcy.  Further, according to the Fifth Circuit, the parties presented conflicting evidence of the district’s motivation for rejecting Devon’s bid.  The evidence created genuine issues of material fact on whether the district violated § 525(a) of the U.S. Bankruptcy Code, and whether the district did not comply with Texas Education Code § 44.031(b).

Things to Remember:  The court noted that the term “solely” in this context is to be narrowly construed.  The law prohibits discrimination against a company that filed for bankruptcy protection “solely” because of that fact, but does not prohibit “examination of the factors surrounding the bankruptcy, the imposition of financial responsibility rules if they are not imposed only on former bankrupts, or the examination of prospective financial condition or managerial ability.”  It does seem logical that a district would want answers to a lot of questions before entering into a contract with a vendor that has recently gone into bankruptcy.

GOVERNANCE

Open Meetings Act

DID THE NOTICE OF THE BOARD MEETING COMPLY WITH THE OPEN MEETINGS ACT?

Case citation:  Concerned Parents v. Katy ISD, Dkt. No. 060-R10-0312 (Comm’r Educ.  August 30, 2013).

Summary:   The Katy Independent School District initiated a process to consider proposed school boundary changes.  Prior to the final board action, three public workshops were held, each of which was preceded by the posting of materials to be discussed.  The administration’s recommendation was posted on the board’s website prior to the board meeting to consider the boundary changes.  The administration’s proposed boundary changes concerned three elementary schools and one middle school.  The district set the final meeting of the school board for January 23, 2012.  The notice of the board meeting read:  “VIII.  Discussion/Action:  1. Discuss and consider Board approval of attendance boundary modifications.”  The notice also specified that an open forum would be held.  During the open forum, citizens spoke for and against the boundary changes and each citizen spoke for about the same time period.  The board ultimately adopted the proposed boundary changes, with one exception related to keeping students from one land use zone at its current elementary school.

Concerned Parents and Taxpayers of Kay ISD and Tom Anderson appealed the board’s decision to the Commissioner of Education.  They claimed that the board’s decision violated the Texas Constitution, school board policy, and the Texas Open Meetings Act.

Ruling:  The Commissioner upheld the board’s decision.  The Commissioner first concluded that jurisdiction did not exist over claims that the district violated the Texas Constitution or its own board policies.  The Commissioner, however, had jurisdiction over violations of the Texas Open Meetings Act under Texas Education Code § 26.007(b).  The main issue was whether the district posted proper notice of the board meeting.  The petitioners argued that the notice was insufficient because it did not inform the public that the board might amend the administration’s recommended boundary changes.

Under the Open Meetings Act, a governmental body is required to provide notice of each meeting, and include in the notice the subject of the meeting.  The notice must allow the reader to be alerted that action would be considered with respect to a particular subject.  There is no necessity to post copies of proposed resolutions or to state all of the consequences that may necessarily flow from the consideration of the subject stated.  As public interest increases in a matter, there is a requirement for increased specificity of the notice.  Here, considering the interest in the subject matter and the full context of the district’s actions concerning school attendance zone changes, the district’s notice for the board meeting of January 23, 2012 met the notice requirements under the Open Meetings Act.  There was nothing in the notice that prohibited the board from amending or changing the administration’s recommended boundary changes.  The notice was specific enough to put the public on notice of the board’s action and that an open forum would be provided.  The Commissioner upheld the board’s actions.

Things to Remember:  Notice that the Commissioner’s jurisdiction is limited to the “school laws of Texas” which is generally limited to Articles I and II of the Education Code. But because T.E.C. § 26.007(b) requires school board meetings to comply with the TOMA, the Commissioner also asserts jurisdiction over complaints that the board violated that law.

LABOR & EMPLOYMENT

Whistleblower

DID THE UNIVERSITY PROFESSOR ESTABLISH CLAIMS UNDER THE WHISTLEBLOWER ACT?

Case citation:  University of Houston v. Barth, 403 S.W.2d 851 (Tex. 2013).

Summary:   University of Houston professor, Stephen Barth, sued the university under the Texas Whistleblower Act.  He claimed that the university retaliated against him for reporting that his supervisor violated internal administrative policies located in the University’s System Administrative Memorandum (SAM), and other state civil and criminal laws.

Barth was an attorney and tenured professor in the hotel management college at the University.  In March and April of 1999, Barth reported to the University’s chief financial officer and general counsel that his college’s dean allegedly engaged in questionable accounting practices, mishandled funds, and entered into improper contracts relating to the University.  In May 1999, Barth also reported the alleged violations to the University’s internal auditor and spoke with an associate provost as well.  In June of 1999, Barth received a “marginal” rating in one area during his annual evaluation, which affected his merit raise for that year.  Barth was also denied travel funds in 1999, and Barth’s annual legal symposium on hotel law was cancelled allegedly after the dean and a sponsor withdrew their support.  Barth filed two administrative grievances against the dean, claiming he was subject to adverse personnel actions for reporting the alleged violations.  However, the parties were unable to successfully resolve Barth’s grievances.

In 2001, an investigation into the dean’s accounting practices concluded that the dean had failed to comply with internal University procedures and state regulations, including section 03.A.05 of the University’s SAM, which requires a contract between the hotel management college and a public relations firm to be approved by the office of general counsel and to be reported to the Board of Regents.  The investigation determined that the dean did not violate criminal laws that prohibit tampering with governmental records.  Shortly after the University published the investigative report, Barth sued the University for retaliation under the Whistleblower Act.

At trial, Barth claimed liability under the Whistleblower Act based on his reporting of three alleged violations of law, which included: (1) the Penal Code, (2) the University’s SAM, and (3) state civil statutes on government contracting.  The jury found the University liable, but the charge did not specify on which of the three grounds.  The trial court rendered judgment in favor of Barth, awarding him $40,000 in actual damages and $245,000 in attorney’s fees.  After several appeals involving unrelated issues, the Supreme Court returned the case to the trial court to consider whether it had jurisdiction over the Whistleblower claims.  The trial court ruled that it did have jurisdiction and Barth appealed.

The court of appeals agreed and affirmed the trial court’s judgment.  The court of appeals concluded that Barth’s allegation that the University retaliated against him for reporting that the dean had violated the SAM’s internal policies was sufficient for purposes of establishing jurisdiction under the Whistleblower Act.  The University sought review of the appeals court ruling, arguing that (1) the SAM’s administrative policies are not “law” under the Whistleblower Act, and (2) Barth failed to show that his alternative reports of violations of law were made to an appropriate law enforcement authority as required by the Whistleblower Act.

Ruling:  The Texas Supreme Court reversed the appeals court decision, and held that because Barth failed to prove the elements under the Whistleblower Act, jurisdiction did not exist over the claims.  Texas Government Code § 554.0035 waives sovereign immunity when a public employee alleges a violation of the Whistleblower Act.  A violation “occurs when a governmental entity retaliates against a public employee for making a good-faith report of a violation of law to an appropriate law enforcement authority.”  The Whistleblower Act defines “law” as a state or federal statute, an ordinance of a local governmental entity, or “a rule adopted under a statute or ordinance.”

The Supreme Court first determined that the SAM’s administrative policies were not “law” under the Whistleblower Act because there the policies were not enacted by the Board of Regents as required by the University’s enabling statute.  The Court observed that a rule is only a “law” under the Whistleblower Act if the rule is “adopted under a statute.”  Section 111.35 of the Education Code grants the University’s Board of Regents authority to “enact bylaws, rules, and regulations necessary for the successful management and government of the university.”  Thus, for the SAM’s administrative policies to be “rule[s] adopted under a statute,” the Board of Regents must have “enacted” the policies as required by that section.  According to the Court, there was no evidence that the Board of Regents enacted or passed the SAM’s administrative policies.  Accordingly, the SAM could not form the basis for a report of a violation of “law” under the Whistleblower Act.

Barth claimed that, even if the SAM’s administrative policies are not “law,” the University’s sovereign immunity was waived because he believed in “good faith” that he was reporting a violation of law.  The good-faith inquiry under the Whistleblower Act has both subjective and objective components, which require that Barth “must have believed he was reporting conduct that constituted a violation of law and his belief must have been reasonable based on his training and experience.”  Although Barth believed that he reported a violation of law, Barth’s belief was not reasonable given his legal training, experience as a former practicing attorney, and familiarity with the University’s rules from serving on the faculty senate.  Thus, jurisdiction did not exist over the Whistleblower claims stemming from alleged violations of the SAM provisions.

With respect to the Whistleblower claims arising from his reports of alleged violations of state civil and criminal law, the University argued that none of Barth’s reports were made to an appropriate law enforcement authority under the Act.  The Supreme Court agreed and observed that the Whistleblower Act requires a claimant to show that he in “good faith” reported a violation of law to an “appropriate law enforcement authority.”  The Texas Supreme Court previously held that “purely internal reports untethered to the Act’s undeniable focus on law enforcement—those who either make the law or pursue those who break the law—fall short.”  To constitute an appropriate law enforcement authority under the Whistleblower Act, it must have “authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties.  Authority of the entity to enforce legal requirements or regulate conduct within the entity itself is insufficient to confer law-enforcement authority status.”

Here, given Barth’s legal training and experience as a practicing attorney, Barth failed to meet the objective component of the good faith test for reporting a violation of law to an appropriate law enforcement authority.  According to the Court, Barth could not have believed in good faith that the University’s general counsel, chief financial officer, internal auditor, or associate provost possessed the power to either (1) regulate or enforce state civil law relating to the University’s contracting with third parties, or (2) prosecute or investigate the alleged criminal law violations.  Thus, the trial court lacked a basis for subject-matter jurisdiction over the entirety of Barth’s Whistleblower lawsuit.

Things to Remember:  This decision by our state’s highest court is an important precedent with regard to elements of a Whistleblower claim. The Supreme Court holds the plaintiff to a higher standard than the average joe because he is a lawyer.  The court says that Barth, given his legal training,  “could not have believed in good faith” that a violation of the SAM rules was a violation of law. Presumably, a non-lawyer could have had that “good faith belief.”  But the court does not explain what that says about the learned judges of the Court of Appeals. They agreed with Barth.  If Barth cannot have believed that he had a case, how could the Court of Appeals say that he did? 

Discrimination

DID THE SCHOOL DISTRICT DISCRIMINATE OR RETALIATE AGAINST THE TEACHER?

Case citation:  Ray-Brown v. Longview ISD, 2013 WL 5433476 (Tex. App. – Texarkana 2013) (unpublished).

Summary:   Masika Ray-Brown, who was African American, worked as a third grade teacher for the Longview Independent School District under a probationary contract.  In September 2010, John York, the caucasian principal of the school at that time, came to Ray-Brown’s classroom, removed a white student from the class, and transferred that student to a third-grade class with a white teacher.  After the transfer, Ray-Brown reported to York that the manner in which the transfer took place “was a race issue.”  Ray-Brown alleged that, after this incident, York retaliated against her by treating her differently than other non-African American teachers.

She reported to York that her coworker, Takeisha Jones, an African American, threatened her with physical violence and that Jones was actively trying to sabotage Ray-Brown’s employment with the district.  Ray-Brown alleged that York failed to take remedial or corrective action after receiving her complaints against Jones.  Ray-Brown claimed that York placed an oppressive workload on her by forcing her to coach students to compete in a UIL reading and writing competition.

From late November 2010 through late January 2011, York placed Ray-Brown on an Intervention Plan for Teachers in Need of Assistance.  York testified that no other third-grade teacher was placed on such a plan during that year.  Ray-Brown argued that York ignored her complaints of discrimination and harassment and that York improperly performed his appraisal. York’s evaluation found Ray-Brown’s performance to be deficient.  Based on that conclusion, York recommended to the District’s Board of Trustees that Ray-Brown’s contract not be renewed.  On or about March 8, 2011, Ray-Brown was informed by letter that her contract would be terminated June 6, 2011.

On March 29, 2011, Ray-Brown submitted a written grievance against York and Jones.  After her grievance was denied, Ray-Brown filed suit against the district under Chapter 21 of the Texas Commission on Human Rights Act (the Act), alleging discrimination based on race and retaliation for opposing racial discrimination.  The district answered and moved for summary judgment, arguing that Ray-Brown failed to make a prima facie case of discrimination or retaliation.  The trial court agreed with the District and granted summary judgment.

Ruling:  The appeals court affirmed the trial court’s ruling because Ray-Brown failed to make a prima facie case of either discrimination or retaliation.  On appeal, Ray-Brown argued that the trial court erred because: (1) she established a prima facie claim of discrimination, (2) she established a prima facie claim of retaliation, and (3) she provided evidence to establish that the district’s proffered reasons for terminating her were pretextual.

The appeals court held that there was insufficient evidence that Ray-Brown was subjected to a hostile work environment.  There was no objectively offensive conduct that was physically threatening or humiliating, and no evidence that Ray-Brown’s work performance was unreasonably impeded.  Considering the frequency, severity, and nature of the incidents as alleged by Ray-Brown, there was no evidence that the district “was permeated with discriminatory intimidation, ridicule, or insult.”  Thus, Ray-Brown failed to offer evidence of actionable harassment.  Even if the incidents were actionable, Ray-Brown failed to provide evidence, other than conclusory allegations and speculation, that any harassment she received was based on her race.

The appeals court also dismissed Ray-Brown’s retaliation claim because she failed to demonstrate that she engaged in a protected activity.  Her statement that the student transfer was a “race issue” did not reflect opposition to a practice of York or the district, and until she was notified of her impending termination, she made no further complaint or follow-up regarding that particular student transfer or any other student transfer.  She failed to make a prima facie case that a causal link existed between her statement and York’s recommendation not to renew her contract.  The appeals court, therefore, affirmed the trial court judgment in favor of the district.

WHAT IS AN “ADVERSE EMPLOYMENT ACTION”?

Case citation:  Webb v. Round Rock ISD, 2013 WL 4434245 (W.D. Tex. 2013) (unpublished).

Summary:   Crystal Webb was employed as a custodian for the Round Rock Independent School District.  On November 16, 2011, Webb filed an internal complaint with the district complaining that her supervisor, Oralia Sandoval, talked about her in Spanish and told her on one occasion to transfer “to a school where they speak English.”  Webb alleged that after she filed the internal complaint, Sandoval retaliated against her by chastising her on one occasion for being late to work; telling her that she could not use the floor scrubber machine; and by “constantly checking behind me and telling me that I am not doing my work correctly.”  On March 23, 2012, Webb filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), alleging race discrimination and retaliation.

On April 9, 2012, Webb received a Performance Evaluation stating that she failed to (1) follow her supervisor’s instructions, (2) communicate with her colleagues, (3) report any problems in her area to her supervisor, (4) work as a team, and (5) help when another employee is out.  The supervisor complained further that Webb needed to improve her attendance.  The day after receiving the poor evaluation, Webb called in sick and did not return to work until May 1, 2012.

On June 14, 2012, Webb filed another internal complaint with the district, complaining that her coworker called her something in Spanish which she heard as “Nerglow or Neglow[sic].”  However, following an internal investigation, the district determined that the coworker had not used a racial epithet, but had actually said “Jingle Bells.”  During the investigation, Webb’s coworkers complained that Webb had been taking photos and videos of them without their permission.  After the investigation, Webb’s supervisors determined that the best solution for Webb and her coworkers was for Webb to transfer to another campus.  Thus, on June 20, 2012, Webb was transferred to Brushy Creek Complex, where she performed the same job duties.

Webb was unhappy with the transfer and filed another EEOC Complaint on June 27, 2012, complaining that the transfer was “forcing me to have to walk a much further distance to work and jeopardizing my safety as I travel to and from work.”  Webb claimed that she was transferred in retaliation for having filed internal complaints and the EEOC Charges of Discrimination.  On July 18, 2012, Webb was transferred again, this time to schools which were much closer to her home.

Webb sued the district for alleged violations of Title VII of the Civil Rights Act of 1964. In response, the district filed a motion to dismiss, arguing that Webb could not make out a prima facie case of employment discrimination or retaliation under Title VII because Webb did not suffer an adverse employment action.

Ruling:  The trial court held that Webb could not make out a case of racial discrimination under Title VII because she failed to show that she suffered an adverse employment action.  Adverse employment actions include only “ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.”  Thus, an employment action that does not affect job duties, compensation, or benefits is not an adverse employment action.  None of the actions that Webb complained about in her complaint qualified as adverse employment actions under Title VII.

The June 2012 transfer was not an adverse employment action.  While a job transfer can constitute an adverse employment action, the new position must be “objectively worse” than the original position.  A purely lateral transfer is not an adverse employment action.  Webb’s transfer was merely a lateral transfer that was not an adverse employment action.  Webb does not dispute that the custodial position at that campus had the same job title, benefits, duties, and pay as Webb’s previous position.  Webb has failed to show that her transfer was an adverse employment action.

Webb also complains that her supervisor gave her a negative performance evaluation in April 2012 and often criticized her work.  An employer’s criticism of an employee, without more, does not constitute an actionable adverse employment action.  Similarly, poor performance reviews do not qualify as ultimate employment actions.  There is no assertion in this case that the negative performance evaluation or general criticisms of her work had any effect on her pay, opportunities for promotion or other similar conditions of employment.  Accordingly, the above-actions are not adverse employment actions.

Webb claimed that her coworkers speak little English and routinely have conversations in Spanish.  Webb complained further that her supervisor “constantly talks about me in Spanish” and on one occasion told Webb to “transfer to another school where they speak English.”  Finally, Webb contended that one of her coworkers once called her something in Spanish, which she heard as “Nerglow or Neglow [sic].”  However, none of Webb’s complaints rose to the level of an adverse employment action.  Thus, she could not establish a claim of employment discrimination under Title VII.

Webb’s retaliation claims also failed.  She alleged that the district retaliated against after she filed internal complaints and her EEOC Charges of Discrimination.  There was no dispute that Webb engaged in protected activity in this case.  Webb claims that she was retaliated against by: (1) her supervisor’s verbal reprimand of her for being late to work; (2) receiving a poor performance evaluation; (3) her transfer to another campus; (4) being talked about and laughed at by her coworkers in Spanish; and (5) receiving unfair treatment.  However, the court already held that none of those actions qualified as materially adverse employment actions.  In addition, other than her subjective belief that she was retaliated against, Webb failed to show any causal connection between her protected activity and the alleged adverse employment actions.  Accordingly, Webb has failed to assert a claim of retaliation under Title VII.

Things to Remember:  The lesson of this case is that things are likely to happen to us at work that we do not like. That does not make it an “adverse employment action.”

Appraisal

DID THE SCHOOL DISTRICT IMPROPERLY CHANGE THE “TINA” COMPLETION DATE?

Case citation:  Wallace v. Bastrop ISD, Dkt. No. 025-R10-1011 (Comm’r Educ.  August 30, 2013).

Summary:  Debra Wallace was employed by the Bastrop Independent School District as a teacher for the 2010-11 school year.  She received an appraisal that required a Teacher In Need of Assistance Plan (TINA).  Wallace and her principal discussed the content of the TINA during the first week of January 2011.  A completion date of February 18, 2011 was discussed.  The TINA form reflecting that completion date, however, was not signed by any party.  On January 12, 2011, Wallace and her principal signed a TINA that had a completion date of June 2, 2011.  Wallace filed a grievance over the matter and, as a result, the TINA completion date was changed from June 2, 2011 to April 25, 2011.  Wallace challenged the appraisal and TINA in grievances filed with the district.  The district denied the grievances and Wallace appealed to the Commissioner of Education.

Ruling:  The Commissioner determined that the appraisal and TINA were proper.  Wallace claimed that she was not informed that she could request a second appraisal.  She also alleged that the TINA was not proper because she had no opportunity to consult with her principal and because the completion date was changed.  Under Texas Education Code § 21.252, teachers are entitled to a second appraisal.  According to the Commissioner, however,
§ 21.252 does not require a district to make a teacher aware of that right each time a teacher receives a written appraisal.  By rule, a teacher is to request a second appraisal if a teacher wishes to have one.  The district, here, did not violate § 21.252 because it did not inform Wallace of her right to a second appraisal.

Wallace claimed that the district violated 19 Tex. Admin. Code §150.1005 when the principal required her to sign the TINA without discussion.  According to the Commissioner, that provision did not concern TINAs and it does not require a principal and teacher to discuss a potential TINA prior to establishing a TINA.

Wallace also claimed that the TINA was invalid because the timeline for completion was changed.  The record contained only one executed TINA, which originally had a completion date of June 2, 2011.  The first TINA that the principal discussed with Wallace was not signed.  Thus, Wallace was placed on only one TINA with a completion date of June 2, 2011.  Wallace filed a grievance over that TINA and the district changed the completion date to April 25, 2011, as a result of her grievance.  Because there were not errors in handling Wallace’s appraisal and TINA, the Commissioner denied each of her claims.

Assault Leave

WAS THE EMPLOYEE ALLOWED TO SUPPLEMENT EVIDENCE TO SUPPORT HER ASSAULT LEAVE CLAIM?

Case citation:  Walker v. North East ISD, Dkt. No. 035-R10-1111 (Comm’r Educ.  August 30, 2013).

Summary:   Jennifer Walker was assaulted while working for the North East Independent School District.  Walker requested and received assault leave.  On January 17, 2011, her workers’ compensation provider determined that Walker could return to work.  Walker objected to that determination in writing, but the district notified her that her assault leave would end on January 26, 2011.  Walker filed a grievance challenging that determination.  At the Level I grievance hearing, Walker became aware of a surveillance video that showed her performing some simple duties.  Following that grievance hearing, Walker’s doctor reviewed the video and determined that Walker looked unstable and was at constant risk of falling.

At Level II and Level III, Walker tried to offer additional evidence, including medical records and the doctor’s notes about the surveillance video.  The additional evidence was not added to the record because it had not been offered at Level I.  When the board deliberated in closed session at Level III, in attendance were the superintendent and an attorney from the same law firm as the attorney who represented the district at the Level III hearing.  Walker filed a second grievance concerning procedural irregularities in the first grievance.  When the grievances were denied, she appealed to the Commissioner of Education.

Ruling: The Commissioner returned the case to the school district to reconsider Walker’s grievance with evidence concerning the doctor’s notes concerning the surveillance video.  Supplementation of the local record is governed by 19 Tex. Admin. Code
§ 157.1073(f), which allows supplementation “if it appears that the party has evidence to offer that is material, relevant, or not unduly repetitious that the party, for good cause, was unable to adduce at the local hearing.”

In this case, Walker sought to supplement the record with evidence concerning the doctor’s evaluation of the surveillance video and other medical records to show that she was unable to return to work.  The Commissioner concluded that all of that evidence was “material, relevant, and not unduly repetitious.”  However, Walker did not demonstrate good cause for failing to timely produce the medical records showing she was unable to return to work.  According to the Commissioner, there was insufficient reason for the delay in obtaining those medical opinions until after the Level I grievance hearing.  According to the Commissioner, Walker did have good cause for not providing the doctor’s opinions concerning the surveillance video because Walker did not become aware of the video until the Level I grievance hearing was held.  Because that evidence was “material, relevant, and not unduly repetitious,” and Walker showed good cause for the delay in submitting the evidence, the Commissioner returned the case to the school district for the board to consider the new evidence.

Walker also objected to the manner in which the district’s board went into closed session to deliberate concerning her first grievance.  The reason given for the closed session under the Texas Open Meetings Act was to consult with the board’s counsel, to discuss personnel, or to hear complaints against personnel.  The attorney who represented the board that night and the superintendent accompanied the board into closed session.  Walker argued that their presence in the board meeting violated the Texas Education Code.  Section 11.1513(j) of the Education Code provides that an employment policy may not restrict the ability of a school district employee to communicate directly with a member of the board of trustees regarding a matter related to the operation of the district.  However, a policy may prohibit ex parte communication related to (1) a hearing under Subchapter E or F, Chapter 21, and (2) another appeal or hearing in which ex parte communication would be inappropriate pending a final decision by the board.

In this case, Walker claimed that she was restricted in her ability to address the board when the chief administrative officer of the district and an attorney, who was a member of the same firm as the attorney who represented the administration, had the potential opportunity to address the board during closed session.  According to the Commissioner, § 11.1513(j) does not in general prohibit a board from conducting executive sessions that exclude employee grievants.

With respect to the attorney’s presence in closed session, the Commissioner observed that Government Code § 551.071 allows a board to consult with its attorney.  Further, under the Texas Open Meetings Act, a governmental body may include individuals in executive session whose participation is necessary for the matter under consideration.  The fact that two attorneys from the same law firm individually represented the administration and the school board during a grievance does not, in itself, establish that a violation has occurred.  According to the Commissioner, it was not improper in this case for the attorney representing the school board to be allowed in the closed session for deliberation.  The record did not reflect that the attorney did anything improper during the closed session.

The Commissioner, however, observed that it is not proper for a superintendent to be allowed into an executive session when a grievance is being deliberated, unless the superintendent’s presence is necessary.  Here, because the superintendent’s presence was not necessary, he should not have been in the executive session when the grievance was discussed.  Nevertheless, the fact that deliberation may have been conducted in violation of the Texas Open Meetings Act does not mean that a vote based on that deliberation is void.  The Commissioner stated:  “There is a considerable difference between a vote that was improperly taken and a deliberation that was not proper.”

Walker also complained that she had filed a second grievance concerning procedural irregularities in the first grievance, but that the board did not respond to the second grievance.  The Commissioner held that Walker did not have to file a second grievance to raise procedural irregularities in the first grievance.  Also, the record did not include the second grievance, so no violation was found.  The Commissioner also held that Walker did not adequately support her claim that the board was incapable of  providing her with a fair hearing.  The Commissioner returned the matter to the school district to consider new evidence relevant to the first grievance.

Things to Remember:  The issue of who goes into closed session with the board on a grievance comes up frequently.  This case provides the Commissioner’s view on the matter.  Attorneys and superintendents should take note.

Compensation

DID THE SCHOOL DISTRICT IMPROPERLY DENY THE TEACHER A “DATE” GRANT?

Case citation:  Trickey v. Longview ISD, Dkt. No. 057-R8-0511 (Comm’r Educ.  August 29, 2013).

Summary:   Judith Trickey worked as a teacher for the Longview Independent School District, when she filed a grievance claiming that the district improperly decided that its District Awards for Teacher Excellence (DATE) grants would be based on two years of performance, instead of one year.  If the district had used only the most recent year of teacher performance to calculate DATE grants, Trickey would have received a grant.  In response, the district argued that the Commissioner did not have jurisdiction over the matter and that it properly awarded the DATE grants.

Ruling:  The Commissioner held that, although jurisdiction existed over Trickey’s appeal, the claims were without merit.  The district argued that jurisdiction did not exist because 19 Tex. Admin. Code § 1073(h)(3) states: “Local decisions regard award amounts are final and may not be appealed to the commissioner.”  According to the Commissioner, that provision did not bar a teacher from filing an appeal claiming that she should have received an award.  Rather, the provision prohibits a teacher from filing an appeal that the district set the general award amounts improperly.

With respect to DATE grants, the Commissioner observed that DATE was created under chapter 21, subchapter O of the Texas Education Code, to allow local school districts to award additional compensation to teachers and to provide additional resources for teacher induction and mentoring.  Districts submit a DATE plan to the Texas Education Agency (TEA) for approval.  By statute and by rule, the plans must meet certain requirements.

Trickey argued that DATE grants should be awarded based on one year of performance.  She argued that (1) under Education Code § 21.703, the TEA is required to use DATE funds each year; and (2) under 19 Tex. Admin. Code § 102.1073, DATE is an annual grant program.  The Commissioner held that neither of those provisions required DATE awards to be based on one year’s performance.  The Commissioner stated:  “The fact that an award is annually bestowed does not mean the award must be for work done during one year.”  Thus, the Commissioner denied the appeal.

Reassignment

CAN A SPECIAL EDUCATION DIRECTOR BE REASSIGNED TO DAEP COORDINATOR?

Case citation:  Lopez v. West Oso ISD, Dkt. No. 015-R1-1010 (Comm’r Educ.  August 29, 2013).

Summary:   Alfred Lopez was employed as the Special Education Director of the West Oso Independent School District during the 2009-10 school year.  The district reassigned Lopez to the position of Disciplinary Alternative Education Program Coordinator for the 2010-11 school year.  Lopez received the same salary in the DAEP Coordinator position.  Lopez filed a grievance challenging the reassignment, arguing that the school district improperly changed his professional capacity in violation of Education Code § 21.206.  He claimed the reassignment was a demotion and that the district was required to employ him in the same professional capacity as his previous Special Education Director position.

Ruling:   The Commissioner upheld the reassignment decision.  The district’s positions of Special Education Director and DAEP Coordinator were in the same professional capacity.  After comparing the detailed job descriptions of each position, the Commissioner observed that both positions were administrative positions.  A comparison of the job duties, authority, salary, and required credentials indicated that while there were differences between the positions, the differences were not so great as to put the two positions in separate professional capacities.

Things to Remember:  This is a good illustration of how broad the term “same professional capacity” is. 

DID THE REASSIGNMENT AMOUNT
TO A DEMOTION?

Case citation:  Hughes v. Lancaster ISD, Dkt. No. 048-R3-0112 (Comm’r Educ.  August 30, 2013).

Summary:    Chauna Hughes worked for the Lancaster Independent School District as a middle school instrumental music teacher and received a stipend as the band director.  By letter dated June 23, 2011, Hughes received notice that she was being reassigned for the 2011-12 school year as an elementary school vocal music teacher.  Hughes filed a grievance challenging the reassignment, but the district denied the grievances.  Hughes then appealed to the Commissioner of Education.  On appeal, she argued that the district improperly reassigned her to a position that was not within the same professional capacity and amounted to a demotion.  She claimed that she did not receive timely notice of a reduction in pay and that, instead of a reassignment, the district’s actions constituted an unlawful nonrenewal.

Ruling:   The Commissioner held that the district’s actions were supported by substantial evidence.  The Commissioner observed that, under Texas Education Code § 21.206, if a school district fails to timely give a teacher notice of proposed nonrenewal when the teacher’s contract is about to expire, the school district is required to employ the teacher in the “same professional capacity” for the following school year.  A requirement to employ a teacher in the “same professional capacity” is triggered only when a contract is about to expire and timely notice of proposed nonrenewal is not given.  Here, the Commissioner held that the district did not violate § 21.206 because Hughes was reassigned for the third year of a three-year contract.

The claims regarding Hughes’ salary also were without merit.  According to the Commissioner, a district may reduce a teacher’s total salary if the teacher is given notice of the salary reduction at a time when the teacher can unilaterally withdraw from the teaching contract.  In this case, the evidence was insufficient to show what Hughes’s total compensation was for the 2011-12 school year.  Thus, the Commissioner could not determine whether the district improperly decreased her total compensation.  The district’s reassignment decision was supported by substantial evidence.

Use of Force

DID THE DISTRICT PROPERLY NONRENEW THE TEACHER FOR USING FORCE AGAINST A STUDENT?

Case citation:  Allen v. Jacksboro ISD, Dkt. No. 052-R1-06-2013 (Comm’r Educ.  August 5, 2013).

Summary:   Sarah Allen was employed as a special education teacher for the Jacksboro Independent School District during the 2012-13 school year, when the district proposed her nonrenewal.  The notice of proposed nonrenewal listed the following policy reasons:  (1) deficiencies pointed out in observation reports, appraisals, or evaluations, supplemental memoranda, or other communications; (2) incompetency or inefficiency in performance of duties; (3) insubordination or failure to comply with official directives; (4) failure to comply with board policies or administrative regulations; (5) failure to meet the district’s standards of professional conduct; (6) any breach by the employee of an employment contract; (7) misrepresentation of facts to a supervisor or district official; and (8) any reason constituting good cause for termination.  The notice of proposed nonrenewal did not specify the conduct by Allen that may have violated those policy reasons.

At the hearing, the district contended that Allen improperly disciplined a special education child who was afraid of the dark by taking the child into a dark room.  According to the district, taking the child into a dark room where the two could not be observed was inappropriate.  The technique of bringing the child into a dark room was not approved by the student’s Admission, Review, and Dismissal (ARD) Committee.  The record showed that, when the student would get disruptive in class, Allen would take the student into the bathroom with the lights off until the student calmed down.  Allen also instructed her teacher’s aide to do the same.  After the hearing, the board voted to nonrenew Allen’s contract and Allen appealed to the Commissioner of Education.

Ruling:  The Commissioner upheld the decision to nonrenew Allen’s term contract.  The main issue before the Commissioner was whether Allen’s conduct was protected by Texas Education Code § 22.0512, which provides professional employees with immunity from disciplinary proceedings when force is used against a student.  To be entitled to immunity under § 22.0512, the use of force must be justified under Texas Penal Code § 9.62 and must not violate the district’s corporal punishment policy.

The district first argued that Allen had not exhausted administrative remedies on her claim of immunity under § 22.0512, because she first raised the argument in her closing statement before the school board.  The Commissioner has previously held that a teacher who raised the issue of Education § 22.0512 in closing argument has properly exhausted administrative remedies.  According to the Commissioner, immunity under § 22.0512 is not an affirmative defense that has to be raised early in the proceedings.  Rather, the statute prohibits disciplinary action if the force is justified.

The Commissioner next considered whether the notice of proposed nonrenewal was specific enough to put Allen on notice of the conduct at issue.  The notice did not contain factual allegations to support the policy reasons cited for nonrenewal.  The Commissioner observed that when a notice of proposed nonrenewal does not provide specific factual allegations, the employee should request a more specific notice in writing.  Here, Allen did not request more specific notice and, as a result, she waived the argument that the notice of proposed nonrenewal was insufficient.

The district argued at hearing that Allen improperly used force by holding the student’s hand and that she used an inappropriate punishment by placing a special needs child who was afraid of the dark in a dark room.  The Commissioner concluded that holding the student’s hand constituted the use of force and that Allen was entitled to immunity under § 22.0512 for her action holding the child’s hand.  However, taking the child to a dark room was not punishment justified under Penal Code § 9.62.  According to the Commissioner, it was improper for the teacher to (1) use a special needs child’s fear of the dark as punishment; (2) be alone with a child in a dark room; and (3) use a disciplinary technique not authorized by the child’s ARD Committee.  The Commissioner rejected Allen’s evidentiary challenges, in part, because she had not objected to the evidence at the hearing and the evidence had no ultimate impact on the outcome of this case.  Because the teacher’s discipline technique for the student was not justified under Penal Code § 9.62, Allen was not entitled to immunity under Education Code § 22.0512.

Things to Remember:  We learn three things from this case. First, that “Holding hands is a use of force.”  Remember that on Valentine’s Day.  Second: it is OK for teachers to do this: “It is not the law that a teacher should never touch a child.” Third, we learn that it is not OK for a teacher to use an aversive technique like this without ARD approval.  Keep in mind that the ARD Committee does not have to “authorize” minor disciplinary consequences that are already authorized by the code of conduct. But this technique is a bit unusual, and should have been discussed with the parents and the ARD Committee in advance.

WAS IT PROPER TO DISCIPLINE THE TEACHER FOR USING A LEFT HOOK ON THE STUDENT?

Case citation:  Moreno v. Donna ISD, Dkt. Nos. 022-R10-1110, 023-R10-1110, 033-R10-1210, 041-R100411 (Comm’r Educ.  August 29, 2013).

Summary:   Silvestre Moreno, Jr. worked as a teacher for the Donna Independent School District when the district placed him on leave with pay for hitting a student.  Moreno filed grievances challenging the district’s actions.  The district denied the grievances and Moreno appealed to the Commissioner of Education.

Moreno argued that he was legally justified in using force against the student and that those who suspended him did not have the authority to do so.  He claimed further that the district did not let him present a grievance concerning another person and that it failed to investigate the matter or file a criminal complaint.  Moreno claimed that the district failed to properly train its police officers and that an employee failed to perform her duties as a police officer.

Ruling:  The Commissioner held that the district properly disciplined Moreno for using force against a student.  Under Texas Education Code § 22.0512, force against a student “is allowed if it is not deadly force and only when and to the degree the professional employee reasonably believes the force is necessary to further the purpose of education or to maintain discipline.”  According to the Commissioner, the issues are whether Moreno subjectively believed that force was necessary to further the purpose of education or to maintain discipline and, if so, whether that belief was objectively reasonable.  “An employee’s belief must be objectively reasonable for the protections of Texas Education Code section 22.0512 to apply.”

To determine whether force is reasonable, the following factors are considered:  (1) the age, sex, and condition of the child; (2) the nature of his offense or conduct and his motives; (3) the influence of his example upon other students; (4) whether the force was reasonably necessary to compel obedience to a proper command; and (5) whether the force was disproportionate to the offense, was unnecessarily degrading, or was likely to cause serious injury.

Here, the record showed that one of Moreno’s sixth grade students had been persistently disobedient and was sent to another teacher’s class.  The student returned to Moreno’s class, but continued to misbehave and began to yell and scream.  Moreno told the student to stop six separate times.  When that did not work, Moreno hit the student with a left hook to the side of the student’s torso.  Moreno acknowledged that he was skilled in boxing.  The Commissioner held that punching the student was not reasonably necessary to enforce the commands he had given the student.  The force was not proportionate to the offense and carried the risk of causing injury.  Moreno’s subjective belief that the force used was necessary, was not reasonable.  Thus, Education Code § 22.0512 did not prohibit the district from taking disciplinary action against Moreno.  Moreno claimed self-defense, however, the board could have properly rejected that claim because Moreno had not stated any facts to support a claim of self-defense in the incident report.  The Commissioner upheld the decision to suspend Moreno with pay.

Things to Remember:  This is the first time that we have seen the term “left hook” in this publication. 

LIABILITY

Qualified Immunity

DID THE TEACHER SUFFER RETALIATION FOR SPEAKING OUT AGAINST THE PRINCIPAL’S GRADING POLICIES?

Case citation:  Goudeau v. East Baton Rouge Parish School Board, __ Fed. Appx. __, 2013 WL 5514548 (5^th Cir. 2013).

Summary:   Sheila Goudeau worked as an elementary teacher for Louisiana’s East Baton Rouge Parish School Board, when her principal, Shilonda Shamlin, instructed teachers, verbally and in writing, to artificially inflate students’ grades.  When Goudeau refused to comply with the directives, Shamlin allegedly threatened to discipline and transfer Goudeau.  Later, Shamlin allegedly threatened to have Goudeau fired if she did not agree to transfer to another school, which Goudeau considered less prestigious.

Goudeau filed a grievance against Shamlin and her grading policies.  The Level I hearing was conducted by Shamlin and ended abruptly when Goudeau would not sign a letter drafted by Shamlin.  At Level II, the district’s general counsel determined that Shamlin had violated Louisiana state law that prohibited the exercise of influence regarding the assignment of grades.  The general counsel also believed that Shamlin’s actions violated the district’s Pupil Progression Plan.  At Level III, the interim chief academic officer agreed that Shamlin’s directives violated the Pupil Progression Plan.  Although those officials and the superintendent agreed that Shamlin failed to follow the grading plan, no action was taken against Shamlin.  Goudeau was later transferred.

Goudeau sued under 42 U.S.C. § 1983, alleging that the district, Shamlin, and the superintendent violated her First Amendment rights.  The Defendants requested a pretrial judgment, arguing that Shamlin and the superintendent were entitled to the defense of qualified immunity and the school board could not be liable under the facts of this case.  The trial court denied the request and the Defendants appealed to the Fifth Circuit Court of Appeals.

Ruling:  The Fifth Circuit Court of Appeals held that the superintendent was entitled to qualified immunity, but Shamlin was not.  The appeals court also held that the claims against the school board were without merit.  Qualified immunity shields a government official from liability when their actions “could reasonably have been believed to be legal.”  A plaintiff seeking to defeat qualified immunity must show (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.

Here, Goudeau based her § 1983 claim for employment retaliation on the Defendants’ alleged violation of her First Amendment free speech rights.  Goudeau had to show that she spoke as a citizen on a matter of public concern, her interest in the speech outweighed the school board’s interest in the efficient provision of public services, and the speech resulted in an adverse employment action.  The appeals court held that the transfer to another school could constitute an adverse employment action.  Goudeau’s speech concerning Shamlin’s implementation of an illegal grading policy involved a matter of public concern.  According to the appeals court, the school board incorrectly argued that the speech was part of a personal employment grievance.  The defendants waived their argument that Goudeau was speaking as a private citizen when she challenged the grading policy, because the defendants had not raised that issue before the trial court.  The appeals court, thus, held that Shamlin was not entitled to qualified immunity.  The appeals court determined that the superintendent was entitled to qualified immunity, however, because the superintendent had not participated in the alleged adverse employment decision against Goudeau.

The appeals court next considered the school board’s request for judgment in its favor.  To establish liability against the school board, Goudeau had to show that the alleged constitutional violation was due to an official policy or custom of the school board.  Goudeau argued that the school board knew that Shamlin was forcing teachers to alter student grades.  However, the appeals court stated:  “In order to establish the School Board’s liability based on an adverse employment decision in response to her protected speech, Goudeau needed to demonstrate a policy or custom targeting the right that was violated (i.e., the right to engage in protected speech free from retaliation), rather than a policy concerning conduct about which she spoke (i.e., the changing of students’ grades).”  Because Goudeau’s allegations only related to her claims that it did nothing to stop Shamlin’s improper grading policy, Goudeau’s First Amendment claim against the district was without merit.  The Fifth Circuit upheld the denial of qualified immunity to Shamlin but held that the superintendent and the school board were entitled to judgment as a matter of law.

Things to Remember:   The state law at the center of this case provides that no school board member, superintendent or principal shall “attempt, directly or indirectly, to influence, alter, or otherwise affect the grade received by a student from his teacher except as otherwise specifically permitted by this Section.”  La. Rev. Stat. Ann. 17:414.2. The closest parallel in Texas is T.E.C. 28.0214: “An examination or course grade issued by a classroom teacher is final and may not be changed unless the grade is arbitrary, erroneous, or not consistent with the school district grading policy applicable to the grade, as determined by the board of trustees of the school district in which the teacher is employed.”

PARENTS

Retaliation

DID THE SCHOOL DISTRICT RETALIATE AGAINST THE PARENT FOR FILING A GRIEVANCE?

Case citation:  Parent v. Katy ISD, Dkt. No. 061-R10-0510 (Comm’r Educ.  August 7, 2013).

Summary:   The parent’s child attended school in the Katy Independent School District.  The parent had a contentious relationship with the school principal at the child’s first school.  That led to the child being transferred to another school.  The parent filed a grievance against the principal at the first school.  There was a string of emails between the parent and administrators at the first school which, in part, involved the accusation that the parent had been denied access to the child’s science teacher.  In the final email sent by the principal of the first school, the principal countered that allegation by stating that:  “You have not been denied access to [the student’s] original teacher, as stated in several communications by you, as you spoke with her on the phone and met with her in my office.  It is in the best interests of this teacher not to be placed in a situation she does not feel comfortable with as a result of the accusations and formal complaints that have been made by you about her.”

The parent filed a grievance, claiming that the principal’s final email was sent in retaliation for the parent’s earlier grievance.  When the district denied the grievances, the parent appealed to the Commissioner of Education.

Ruling: The Commissioner held that the evidence was insufficient to show retaliation against the parent.  The Commissioner first considered whether jurisdiction existed over the claims.  The only valid basis for jurisdiction cited by the parent involved the alleged violation of Education Code § 26.001(a), which states that parents are partners with educators, administrators, and school boards.  The Commissioner has recognized jurisdiction over violations of § 26.001(a) when the violation has been found in conjunction with another violation of Texas Education Code, Chapter 26.  In this case, the parent claimed that the district retaliated against her for filing grievances.  A parent’s right to file grievances is found in Education Code Chapter 26.  The Commissioner stated:  “If a parent cannot exercise his or her rights without retaliation, the parent is not being treated as a partner.”  Thus, the Commissioner had jurisdiction over the § 26.001(a) claim.

The Commissioner, however, denied the claim.  The parent claimed that, on the same day that she met with a school official about her grievance concerning the principal, the principal sent an email that the parent believed was designed to turn her daughter’s teacher against her and her daughter.  It was undisputed that the parent and the principal had a contentious relationship that resulted in the child being reassigned to another school.  Based on the evidence, consisting of email exchanges concerning the daughter, substantial evidence existed to support the school district’s conclusion that the principal did not retaliate against the parent.  The Commissioner also concluded that, because the girl had been assigned to another school at the time, there was no relief available to the parent.  The Commissioner upheld the district’s decision to deny the parent’s grievance.

PRACTICE & PROCEDURE

Exhaustion of Administrative Remedies

WHEN CAN A NONRENEWED EMPLOYEE FILE SUIT WITHOUT FIRST APPEALING THE NONRENEWAL TO T.E.A.?

Citation:  Sharyland ISD v. Molina, 2013 WL 5305711 (Tex. App. – Corpus Christi 2013).

Summary:  Romelia Farias Molina was employed as an assistant principal in the Sharyland Independent School District.  In the spring of 2011, she was notified that her contract would not be renewed because of a reduction in force.  Molina filed a charge of discrimination alleging retaliation and discrimination on the basis of her disability.  After she received a notice of right to sue from the Texas Workforce Commission Civil Rights Division (TWC), she filed suit.  Molina did not pursue a hearing with the school district’s board of trustees or an appeal with the Commissioner of Education.

Molina sued the Sharyland Independent School District, alleging retaliation and discrimination based on her disability.  The school district filed a plea to the jurisdiction, asserting that the trial court lacked jurisdiction because Molina failed to exhaust her administrative remedies under the Texas Education Code’s Term Contract Nonrenewal Act.  The trial court denied the plea to the jurisdiction and the district filed an immediate pretrial appeal.

Ruling:  The appeals court held that Molina was not required to exhaust her remedies under the Education Code and affirmed the trial court’s order.  The appeals court observed that Chapter 21 of the Labor Code, which is also known as the Texas Commission on Human Rights Act (TCHRA), prohibits an employer from discharging or in any other way discriminating against an employee because of the employee’s race, color, disability, religion, sex, national origin, or age.  The statute also prohibits employers from retaliating or discriminating against an employee who: “(1) opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.”

Before suing under Chapter 21, the complainant must exhaust her administrative remedies.  It was undisputed that Molina exhausted her administrative remedies under the Labor Code. However, she did not exhaust her administrative remedies under the TCNA.  Molina contended that she was not required to exhaust her administrative remedies under the TCNA because she pursued claims of retaliation and discrimination based on her disability under the Labor Code.  Molina argued that because she exhausted her administrative remedies under the Labor Code, the trial court had jurisdiction over her suit.

A number of courts have explicitly rejected the dual-exhaustion requirement, holding that it was unnecessary for a school district employee to pursue two administrative schemes, one under the Labor Code and the other under the Education Code, before seeking relief in the courts under the TCHRA.  Here, Molina’s pleadings stated that she was only pursuing claims under the Labor Code and was not pursuing claims under the Education Code.  She argued that she had a disability, “a form of cerebral palsy which affected major life activities such as walking, balancing, working and lifting.”  Molina alleged that SISD discriminated against her on the basis of her disability.  She also claimed that the district retaliated against her because she raised the issue of discrimination.  Construing Molina’s pleadings liberally in her favor and looking to her intent, the appeals court concluded that Molina exhausted her administrative remedies under the Labor Code and was not required to exhaust her administrative remedies under the Education Code before filing suit.

Things to Remember:  This decision creates a major hole in the “exhaustion of administrative remedies” doctrine.  This employee did not request a hearing before the board, or take the case to T.E.A.  Because the claim was based on disability discrimination, the court held that exhaustion of those Chapter 21 remedies was not required.

Commissioner Jurisdiction

Editors’ Note:  The cases reported below concern the jurisdictional authority of the Commissioner of Education.  The Commissioner has jurisdiction over violations of the “school laws of this state” and the regulations adopted under those laws.  The Commissioner also has jurisdiction over violations of employment contracts that caused, or would cause, monetary harm.  To establish jurisdiction, petitioners also must exhaust administrative remedies at the district level.  Recently the Commissioner dismissed a number of cases for lack of jurisdiction.  The cases are summarized briefly below.

THE PETITIONERS DID NOT ALLEGE THE VIOLATION OF AN EMPLOYMENT CONTRACT

Citation & Summary:  Evans v. Donna ISD, Dkt. No. 040-R3-0311 (Comm’r Educ. August 6, 2013).  Marie Evans worked for the Donna Independent School District when she filed a grievance claiming that she was improperly demoted and reassigned.  When the district denied the grievance, Evans appealed to the Commissioner of Education.  The Commissioner, however, did not have jurisdiction over the claims because Evans failed to allege the violation of an employment contract.  She also did not state which provisions of the Texas Education Code or Texas Administrative Code the district violated.  Although she was given an opportunity to replead her claims, she failed to state facts that provided the Commissioner jurisdiction over the matter.

THE PETITIONERS DID NOT ALLEGE THE VIOLATION OF THE SCHOOL LAWS OF THIS STATE

Citation & Summary:  Olivarez v. Texas Taxpayer and Student Fairness Coalition, Dkt. No. 017-R8-1011 (Comm’r Educ. August 5, 2013).  Guadelupe Olivarez, Jr. filed a petition for review against the Texas Taxpayer and Student Fairness Coalition, La Villa Independent School District, Pharr San Juan Alamo Independent School District, the Texas Education Agency, RGV Coalition of Board Members, and Sharyland Independent School District.  The petition sought to allege a violation of an employment contract.  However, Olivarez failed to specifically allege what portion of an employment contract had been violated.  He also did not allege the violation of the school laws of this state, even after having an opportunity to amend his petition.  Thus, the Commissioner dismissed the claims for lack of jurisdiction.

Citation & Summary:  Olivarez v. La Villa ISD, Dkt. No. 009-R8-0910 (Comm’r Educ. August 5, 2013).  Guadalupe Olivarez, Jr. filed a petition for review against the La Villa Independent School District alleging that the district took action to ensure that he would not teach again in Texas.  However, he failed to allege a specific violation of an employment contract or a violation of the school laws of Texas.  Thus, the Commissioner did not have jurisdiction over the claims.

Citation & Summary:  Child v. Chilton ISD, Dkt. No. 068-R8-0611 (Comm’r Educ. August 7, 2013).  The parent of a student in the Chilton Independent School District filed a grievance complaining that the school district improperly disciplined the child.  When the district denied the grievance, the parent appealed.  However, the parent failed to allege a violation of the school laws of this state.  The Commissioner observed further that jurisdiction does not exist over disciplinary actions under Texas Education Code, chapter 37.  Thus, the claims were dismissed for lack of jurisdiction.

Citation & Summary:  Child v. Spring ISD, Dkt. No. 018-R10-1010 (Comm’r Educ. August 7, 2013).  The a parent of a student in the Spring Independent School District filed a grievance claiming that school officials improperly searched the student’s purse and confiscated her gum.  The district denied the grievance and the parent appealed to the Commissioner of Education.  However, the Commissioner lacked jurisdiction because the parent failed to allege the violation of the school laws of this state and failed to exhaust administrative remedies.  The parent failed to state facts to support claims that the district violated Education Code § 4.001 concerning school district objectives and § 22.0511 concerning professional immunity.  In addition, the parent had not exhausted administrative remedies by raising alleged violations of Education Code § 26.008 in her grievance.

Citation & Summary:  Child v. Blum ISD, Dkt. No. 100-R10-0811 (Comm’r Educ.  August 29, 2013).  The parent of a child in the Blum Independent School District filed a grievance claiming that the district did not properly recognize him as the highest-ranking graduate in his class.  The school district denied the grievance.  On appeal, the Commissioner held that jurisdiction did not exist because the parent failed to allege a violation of the school laws of Texas.

Citation & Summary:  Child v. Rockwall ISD, Dkt. No. 090-R10-0612 (Comm’r Educ. August 29-2013).  The parents of a child in Rockwall Independent School District filed a grievance claiming that the district should have nonrenewed the contract of a coach who allegedly violated Education Code § 26.008 and § 4.001(b), board policy, and the Code of Ethics and Standard Practices for Texas Educators.  The district denied the grievance.  The Commissioner also dismissed the appeal for the lack of jurisdiction.  The Commissioner does not have jurisdiction over alleged violations of the Code of Ethics or board policies.  Education Code § 4.001(b) merely states the objectives of public education and the Commissioner cannot substitute his judgment for the school board when there is an alleged failure of a school board to live up to those objectives.  Further, although Education Code § 26.008(b) allows a district to take action on an educator contract for encouraging or coercing a child to withhold information from a parent, a district’s decision to do so is purely discretionary.  Thus, the failure to take contract action under those circumstances does not violate § 26.008(b).  The claims were dismissed for lack of jurisdiction.

THE PETITIONERS DID NOT EXHAUST ADMINISTRATIVE REMEDIES

Citation & Summary:  Johnson v. Luling ISD, Dkt. No. 083-R1-0810 (Comm’r Educ. August 6, 2013).  Kimberly Johnson worked for the Luling Independent School District.  She filed a petition for review with the Commissioner claiming that the superintendent illegally reassigned her in retaliation for reporting violations of law and that she lost supplemental duty pay as a result.  She also challenged her evaluations for not being conducted annually.  In addition, she alleged that the district failed to report incidents of sexual harassment and violations of the Texas Penal Code.  She also requested that the TEA initiate an investigation against the superintendent.  The Commissioner held that jurisdiction did not exist over the claims.  The claims concerning supplemental duty pay did not amount to an alleged violation of an employment contract.  She did not exhaust administrative remedies with respect to the failure to investigate wrongdoing and her evaluations.  Also, the Commissioner does not have jurisdiction over alleged constitutional violations or claims that the superintendent failed to report wrongdoing to the TEA.

Citation & Summary:  Hooks v. Texhoma ISD, Dkt. No. 029-R10-1111(Comm’r Educ. August 6, 2013).  Theresa M. Hooks was employed as a bus driver and teacher’s aide under an at-will oral contract.  After the district terminated her, she filed a grievance.  She failed to attend the Level I grievance, but nevertheless received a hearing before the board of trustees.  The board denied the grievance.  On appeal to the Commissioner, she argued that the district violated Texas Education Code § 11.171.  However, because she did not raise that argument before the board of trustees, she failed to exhaust administrative remedies.  The Commissioner, thus, lacked jurisdiction over the claims.

Citation & Summary:  Child v. Birdville ISD, 081-R10-0810 (Comm’r Educ. August 7, 2013).  The parent of a student in the Birdville Independent School District filed an appeal with the Commissioner of Education after the school board denied her grievance concerning alleged violations of the Code of Ethics and Standard Practices for Texas Educators.  The claims stemmed from the district’s handling of student-on-student harassment.  The Commissioner informed the parties that jurisdiction did not exist over the matter.  The parent amended the appeal, claiming certain violations of the Texas Education Code.  However, those claims had not been raised before the board of trustees.  Thus, the parent failed to exhaust administrative remedies and the claims were dismissed for lack of jurisdiction.

Citation & Summary:  Child v. Quitman ISD, Dkt. No. 036-R10-0111 (Comm’r Educ. August 7, 2013).  The parent of a student in the Quitman Independent School District filed an appeal to the Commissioner of Education claiming that the district violated Texas Education Code § 28.025.  Specifically, the parent claimed that the district did not comply with statutes and rules related to compiling academic achievement records and reporting class ranking to the Texas Higher Coordinating Board.  According to the parent, the district’s actions resulted in harm to the student by misstating her class rank in representations to colleges where she applied for admission.  The Commissioner lacked jurisdiction over the claims because the parent did not first file a grievance with the school district over the claims.  Because she failed to exhaust administrative remedies, the Commissioner dismissed the appeal.

Citation & Summary:  Child v. Red Oak ISD, Dkt. No. 007-R5-1011 (Comm’r Educ. August 29, 2013).  The parent of a child in the Red Oak Independent School District filed a grievance complaining of the school district’s decision to deny the student’s request for an exemption to the student dress code.  The parent only proceeded through two levels of the district’s three-level grievance process, before appealing to the Commissioner of Education.  The Commissioner dismissed the appeal for lack of jurisdiction because the parent failed to complete the district’s grievance process.

Citation & Summary:  Child v. Trent ISD, Dkt. No. 101-R10-0811 (Comm’r Educ.  August 29, 2013).  The parent of a child in the Trent Independent School District filed some papers with the Commissioner of Education related to a grievance that was presented to the district’s board of trustees.  The Commissioner informed the parent that they had not properly filed a petition for review and provided the parent an opportunity to do so.  When the parent failed to file a petition for review, the Commissioner dismissed the case for lack of jurisdiction.

SPECIAL EDUCATION &

DISABILITY LAW

Accommodations

WAS THE STUDENT PROVIDED APPROPRIATE ACCOMMODATIONS?

Case citation:  Student v. Santa Fe ISD, Dkt. No. 129-SE-0213 (Hearing Officer Sharon M. Ramage, April 26, 2013) and Dkt. No. 172-SE-0313 (Hearing Officer Sharon M. Ramage, May 23, 2013).

Summary:  The student qualified for special education services as a student with an Other Health Impairment related to Attention Deficit Disorder, Not Otherwise Specified (ADD).  The student received instruction in the general education classroom.  During the 2012-13 school year, the student’s accommodations included proximity to the teacher, extended time on exams and assignments, contact with parent when an assignment is not turned in, note-taking assistance, FM unit in all classes, and testing in a quiet place.  The assistant principal also helped monitor the student’s assignment completion and prepare the student for tutoring.  The student also had counseling goals related to organizational skills and assignment completion.

A dispute arose over what was considered “proximity” seating with the mother requesting that the student actually sit in the front row of each class.  The student’s ARD Committee agreed to provide the mother with written notice when front-row seating was unavailable or inappropriate along with an explanation why.

The parent insisted on the student having the FM device in all of the student’s classes and questioned the methods used for note-taking assistance.  The parent also expressed concerns over whether the classrooms were too loud to provide for the student’s quiet test-taking accommodation.  The ARD Committee met to clarify the specific accommodations provided to the student, including preferential seating, note-taking, and extended time for assignments.  The Committee determined that front row seating was not necessary, that varying note-taking assistance was appropriate, and that five extra days for assignments was too much time and detrimental to the student’s ability to keep up.  The parent disagreed and filed a request for a due process hearing.

Ruling:  The hearing officer determined that the district provided the student appropriate accommodations to address the student’s ADD.  The parent failed to produce any evidence of procedural errors in developing and implementing the student’s individualized education program (IEP).  The student’s IEP provided a free appropriate public education (FAPE) during the 2012-13 school year and the modifications to the IEP were reasonably calculated to provide the student a FAPE.

The student’s IEP was individualized based on the student’s assessment and performance.  It properly targeted the student’s areas of weakness, including organizational skills and assignment completion.  The Committee provided accommodations, assigned a teacher to monitor progress, and provided counseling and behavioral goals to the student.  The student was excelling in student’s classes, often without using the available accommodations.  The ARD Committee properly adjusted accommodations, such as seating assignments, note-taking methods, and time for assignment completion.  The hearing officer determined that the district properly implemented the student’s accommodations and that the student made academic progress under the student’s IEP.  Thus, the hearing officer denied all relief requested by the parent.  Student v. Santa Fe ISD, Dkt. No. 129-SE-0213 (April 26, 2013).

Following that order, another dispute arose over whether the student should be re-evaluated by the district.  The parent refused to consent to the evaluation and the district sought an order overriding the lack of parent consent.  The record showed that the student was not experiencing any stress related to school, which was the previous concern leading up to his placement into special education.  Instead, the student was excelling academically and behaviorally without accessing special education accommodations, and had made significant progress on the student’s counseling goals.  Thus, the district sought to determine whether the student continued to need special education and related services.

The hearing officer agreed with the district that a reevaluation was warranted for the district to determine eligibility and educational need based on current data.  The district was obligated to provide the student a FAPE based on current assessment and performance.  When a parent refuses to consent to an evaluation, the district may seek an order overriding the parent’s lack of consent.  The hearing officer concluded that additional evaluation data was needed as part of the district’s ongoing obligation to the student to determine the student’s present level of educational performance and need.  The hearing officer, therefore, ordered the parent to cooperate with the district so that it could conduct a full individual evaluation.  Student v. Santa Fe, Dkt. No. 172-SE-0313 (May 23, 2013).

Things to Remember:  Notice: as the student’s situation changes, the district makes adjustments. Here, the district effectively monitored student performance, leading to the request for a new evaluation, which the hearing officer agreed was proper.

Eligibility

WAS THE DISTRICT’S ELIGIBILITY DETERMINATION PROPER?

Case citation:  Student v. Copperas Cove ISD, Dkt. No. 208-SE-0413 (Hearing Officer Gwendolyn Hill Webb, July 12, 2013).

Summary:   The student attended school in the Copperas Cove Independent School District and was eligible for special education as a student with autism and a speech impairment.  The student had been diagnosed with “high functioning autism.”  The student attended school in the general education setting and was provided occupational therapy and speech therapy.  The district conducted psychological, speech, and occupational therapy assessments.  The parent later request independent educational evaluations (IEEs) in those areas.

The district held a brief ARD meeting in February of 2013, to address the parent’s behavioral concerns, especially a recent behavioral incident by the student.  The ARD had the counselor speak to the student about controlling anger and refraining from saying inappropriate things.  The district also provided  a number of behavioral supports and social skills training.

The student received an IEE from a licensed specialist in school psychology and another from a neuropsychologist.  When the student’s ARD Committee met to discuss the results of the IEEs, it determined that the student did not exhibit a need for special education services and that the student’s needs could be addressed through Section 504 accommodations in the general education setting.  The parents disagreed and requested a due process hearing.

Ruling:  The hearing officer ruled in favor of the parent.  According to the hearing officer, the district did not provide an appropriate re-evaluation of the student to support a determination that the student no longer met eligibility criteria as a child with a disability in need of special education.  The district failed to engage in a collaborative process required to determine the student’s current levels of performance, function, and adaptive behavior. The district also did not take into account the student’s individual needs in the areas of behavior and social skills.

The hearing officer determined that the student needed a functional behavioral assessment (FBA) and IEEs for in-home training, assistive technology, and speech.  The parent, therefore, was entitled to IEEs at the district’s expense.  Further, according to the hearing officer, the student’s teacher was not properly trained in methods for addressing the student’s behavioral needs associated with autism, including training in Applied Behavioral Analysis (ABA) therapy.  In addition, the general education teacher did not provide needed instruction to the student in behavior management.  The district’s evaluation did not provide an appropriate basis for deciding that the student no longer met eligibility criteria as a student in need of special education services.  The hearing officer, therefore, ordered the district to provide requested IEEs, an FBA, ABA training, and compensatory services.

Private Placement

THE STUDENT WAS ENTITLED TO A PRIVATE PLACEMENT

Case citation:  Student v. Fort Bend ISD, Dkt. No. 076-SE-1112 (Hearing Officer Stephen Webb, April 3, 2013).

Summary:   The student attended school in the Fort Bend Independent School District and was eligible for special education services as a student with an Emotional Disturbance (ED) and Other Health Impairment (OHI).  The student had Attention Deficit Hyperactivity Disorder (ADHD) and depression, among other things.  The district provided a Full Individual Evaluation (FIE) which revealed “severe depressive symptoms in areas associated with a lack of engagement in pleasant activities, reduced motivation and effect, along with irritability, boredom and complaints of significant physical illness that may be associated with lethargy and somatic components.”  The student also had a history of failing grades, poor participation in classroom activities, and frequent illness.  However, the student was able to mask symptoms of anxiety and depression with teachers by presenting a deceptively happy affect.  Teachers considered him a leader at school and popular among the other students, but unmotivated to complete schoolwork.

On August 23, 2012, the student’s Admission, Review and Dismissal (ARD) Committee reviewed the FIE, a psychological, and OHI evaluations, all dated August 10, 2012, as well as school records, and parent information.  Based on the information presented, the student’s ARD Committee concluded that the student’s behavior impeded the learning of the student and others; significantly interfered with the student’s ability to meet general academic mastery levels; and affected the student’s involvement and progress in the general curriculum.  A Behavior Intervention Plan (BIP) was developed to address the student’s failure to complete school work.  The ARD Committee placed the student in the general education setting with in-class support services provided by a special education teacher.  The ARD also provided the student with psychological services for sixty minutes, one time per nine weeks.

The parents later withdrew the student from the district, and requested an ARD Committee meeting in November of 2012, to request reimbursement for the student’s private placement.  On November 19, 2012, the ARD Committee reviewed the student’s FIE and other assessments, but declined to change the student’s program or authorize reimbursement for the private placement.  The ARD meeting ended in disagreement.  The parents requested a due process hearing urging their request for a private, residential placement at district expense.

Ruling:  The hearing officer held that the student was entitled to a private placement for one year.  However, the district was responsible for paying only those costs associated with the student’s educational services.  The record demonstrated that the district did not have a full opportunity to develop an appropriate program for the student.  The student was admitted to special education for the first time on August 23, 2012.  Prior to that admission, the district served the student strictly through a §504 Committee.  When the student was admitted to special education, the ARD Committee determined that another ARD should be scheduled to monitor transition services.  That ARD meeting was held on September 17, 2012.  Shortly thereafter, the parents unilaterally withdrew the student and sought a private placement.  In addition, the student’s parents did not keep the district apprised of the student’s emotional condition that led to the parents’ unilateral placement.  The parents did not consult with anyone with the district or the ARD Committee before withdrawing the student.  As a result, the student had completed little more than a few weeks of the 2012-13 school year, with absences, before being withdrawn. According to the hearing officer, there was insufficient time to implement the IEP that had been developed.

The hearing officer, nevertheless concluded that the private setting was an appropriate educational placement that provided the student an opportunity to gain psychological and educational skills needed to receive a FAPE, at any campus setting.  The school helped children struggling with attachment, trauma, and emotional regulation issues.  The goal of the program was to improve the brain functioning of the children so that they could get along with other people and do well in school or their chosen profession.

According to the hearing officer, the IEP developed by the district was not appropriate, particularly in the areas of educational setting and related counseling services, and was not designed to provide the student FAPE.  Student’s ARD Committee focused on the student’s academic schedule with insufficient focus on the kind and amount of psychological counseling that would allow the student to derive an academic benefit.  Without interventions that were designed to address the student’s unique emotional needs and depression, the student could not receive a FAPE.

The parents also proved that the student required a private school at public expense in order to receive FAPE.  The private program was an appropriate setting, but the district was only required to reimburse educational expenses.  Furthermore, because the district was not given a fair opportunity to devise an appropriate educational placement for the student, the hearing officer awarded placement for only one year.  The ARD Committee was ordered to monitor the student and review the placement at the end of the year.

THE PRIVATE PLACEMENT WAS APPROPRIATE FOR THE STUDENT

Case citation:  Student v. Houston ISD, Dkt. No. 038-SE-1012 (Hearing Officer Sharon M. Ramage, April 5, 2013).

Summary:  The student was identified as a student with autism and a speech impairment.  The student’s IEP included academic, behavioral, and social skills goals.  The student received Applied Behavioral Analysis (ABA) and the district provided some ABA training to the student’s teacher.  The student’s schedule called for minimum unstructured time and a specified staff-to-student grouping ratio.  The ratio was based on the student’s functioning, need for behavioral accommodations across settings, and issues with transitions.  The student had a history of behaviors that included being off-task, leaving the assigned area, noncompliance, disruptions, emotional outbursts and tantrums, defiance, and negative physical behaviors.  The most problematic behaviors were that the student would get off task and would create fantasy situations to escape and avoid reality.

The student was placed in the SLC classroom.  Over the 2010-11 and 2011-12 school years, the number of students in the SLC classroom continually increased.  The student’s behavior and progress on academic and behavioral goals declined.  The parent communicated concerns over the state of the SLC classroom and her belief that the district was not properly implementing the student’s behavior plan.  The student’s ARD Committee later eliminated from the student’s IEP the need for a limited student-grouping ratio.  Progress reports showed that the student did not make meaningful progress, and there were no progress reports after February 17, 2012.  In addition, the district stopped providing the parent regular communication logs.

The student’s self-injurious and aggressive behaviors began to increase and the student did not progress on the goals set out in the student’s IEP.  At one point, because the student could not master a goal related to ordering and comparing whole numbers, the teacher unilaterally changed the goal without ARD Committee approval.  The district proposed an extended school year program (ESY) to address the lack of progress on goals, but the parent requested a private ABA program instead.

At the beginning of the 2012-13 school year, the parents enrolled the student in the district but notified the district of their intent to enroll the student in a private placement.  The student’s ARD Committee implemented the same IEP adopted the previous year.  The parents withdrew the student and the district held an annual ARD Committee meeting during which it developed new goals and objectives for the student, and recommended accommodations.  The IEP did not include a specified staff-to-student ratio.  The parents rejected the program and continued the student’s private placement.  The parents also requested reimbursement for the private placement.

Ruling:  The hearing officer determined that the district denied the student FAPE and ordered the district to reimburse the parents for the private placement.  The failure to include the specified student-grouping ratio resulted in impeding the student’s access to a FAPE and a denial of educational benefit.  The student’s decline in progress coincided with an increase in the class size and removal of the required ratio.  The decision to remove the ratio was based on campus concerns, rather than the individual needs of the student.  The record showed further that the district failed to adequately track the student’s progress and provide progress reports to the parents.

The student’s educational program denied the student FAPE.  The student did not make meaningful academic or behavioral progress.  According to the hearing officer, services were not provided in a collaborative manner by key stakeholders.  Because the student’s program was not appropriate when the parents withdrew the student and the private placement was appropriate, the hearing officer ordered the district to reimburse the parents for the private school expenses incurred during the summer of 2012 and the 2012-13 school year.  The hearing officer also ordered the district to make a plan for the student’s transition back to the school district.

Restraint

DID STAFF IMPROPERLY RESTRAIN THE STUDENT?

Case citation:  Student v. Ysletta ISD, Dkt. No. 009-SE-0912 (Hearing Officer Deborah Heaton McElvaney, April 27, 2013).

Summary:  The student had a history of severe behavior problems, including tantrums, aggressive behaviors such as hitting, kicking, and throwing objects, among other things.  A psychological evaluation done during the 2009-10 school year at a different school district revealed that the student had severe Attention Deficit Hyperactivity Disorder (ADHD), oppositional defiant disorder, some emerging conduct disorder problems, and probable depression, all of which interfered with student’s educational progress.  Thus, the student met eligibility criteria for special education services as Emotionally Disturbed (ED).  The student also had an auditory impairment (AI).  The assessors recommended that the student be placed in a structured placement with more individual teacher support and supervision and that the student’s ARD Committee develop an appropriate behavior intervention plan (BIP) to target inappropriate behaviors with positive reinforcement.

The student enrolled in Ysleta Independent School District in August of 2010.  On August 27, 2010, the student’s ARD Committee developed an interim placement in a behavior intervention class (BIC).  The Committee provided related services addressing the student’s auditory impairment, as well as psychological services.  The student’s ARD Committee later reviewed an FIE, as well as other records from prior districts and continued the student’s classifications of ED, OHI, and AI.  The ARD Committee determined that the student could not follow the district’s Disciplinary Management Plan and would need a BIP.  The Committee discussed negative behaviors, and various positive reinforcements to correct the student’s behavior, such as allowing computer time, games with teachers, and access to the Boys’ Town Store.

During the 2011-12 school year, the student continued to engage in negative behaviors. The student’s parent refused to administer any medication to address the student’s ED and ADHD disabilities and did not allow discussion of the student’s medication during ARD meetings.  The student’s behavior was so aggressive that staff had to restrain the student during the 2011-12 school year.  In March of 2012, the district’s Licensed Specialist in School Psychology (LSSP) performed a functional behavioral assessment (FBA) which revealed aggressive behaviors such as throwing things, destroying school materials, and threatening others.  Notwithstanding those problems, the student was academically sound and capable of performing at grade-level.  The student also passed grade-level curriculum.

During the fall of 2011, the student was restrained nine times, and during the spring of 2012, the student was restrained six times.  The parent claimed to have witnessed one of the retraints.  She believed the principal restrained the student by holding the student’s wrists and ankles, in a “hogtied” position.  However, others who witnessed the restraint denied that the principal was involved and that the student was restrained face down or “hogtied.”  Others said that a teacher restrained the student to prevent the student from kicking and hitting other students.  It was later established that the parent did not actually see the incident, but got her information from the student.  The student had a red mark on the student’s face but the nurse checked the student out and found the student to be okay.  Following this incident the mother requested a due process hearing raising numerous substantive and procedural errors over the development and implementation of the student’s program.  The main issue, however, was whether the district improperly restrained the student.

Ruling:   The hearing officer held that the district provided the student a free appropriate public education, and found no substantive or procedural violations.  The hearing officer first determined that the one-year statute of limitations applied in this case, barring some of the parent’s claims that arose more than one year before she filed the request for a due process hearing.

With respect to the remaining claims, the hearing officer held that there was “very little evidence to support any of the seventeen (17) issues asserted by Student against YISD.” Further, according to the hearing officer, the evidence was insufficient to show that the restraint was inappropriate.  “Restraint” is defined in 19 Tex. Admin. Code § 89.1053(b)(2)  as “the use of physical force or a mechanical device to significantly restrict the free movement of all or a portion of the student’s body.”  Restraints are authorized for use in an emergency, which is defined as “a situation in which a student’s behavior poses a threat of (A) imminent, serious physical harm to the student or others; or (B) imminent, serious property destruction.”  19 Tex. Admin. Code §89.1053(b)(1).  The parent and district provided conflicting testimony over the one restraint that was at issue in this case.  The parent claimed that the principal held the student down in a “hogtied” position.  District staff testified that the principal did not restrain the student, but that a teacher and another staff member restrained the student for hitting and kicking other students, but that the student was not in the “hogtied” position.  Based on the documentary evidence concerning the incident, the hearing officer held that the district did not inappropriately or unlawfully restrain the student.  Further, the parent provided no evidence of any other restraint.  Thus, the hearing officer denied the parent’s claims concerning restraints used on the student.

STUDENTS

Transfers

DID THE SCHOOL DISTRICT IMPROPERLY TERMINATE THE STUDENT’S TRANSFER AGREEMENT?

Case citation:  Child v. Skidmore-Tynan ISD, Dkt. No. 026-R5-1110 (Comm’r Educ.  August 7, 2013).

Summary:   The child attended school in the Skidmore-Tynan Independent School District under a transfer agreement for the 2010-11 school year.  On September 14, 2010, the school district revoked the transfer agreement.  The parents appealed using the district’s grievance procedures.  When the district denied their grievances, the parents appealed to the Commissioner of Education, arguing that the district violated Education Code
§§ 25.036 (transfer of students), 26.001 (requiring a procedure for parent complaints), 11.159 (board member training requirements), 11.201 (duties of a superintendent), 4.001 (public school missions and objectives), and Chapter 37 (student discipline).  The school district argued that the Commissioner did not have jurisdiction over those claims.

Ruling: The Commissioner held that it had jurisdiction over claims that the district improperly revoked the transfer agreement under Education Code § 25.036 and granted the parents’ appeal on that basis.  The Commissioner observed that in cases where a child is the petitioner, the Commissioner’s only possible grant of jurisdiction is under Texas Education Code § 7.057(a)(2)(A), which concerns violations of the school laws of Texas.  The “school laws of this state” are defined as the first two titles of the Texas Education Code and rules adopted under those titles.  The district argued that the parents had not pled a possible violation of any of the provisions of the Texas Education Code cited in their appeal.

The Commissioner concluded that the only statutory violations cited by the parents that fell within the school laws of Texas were the alleged violations of Education Code § 26.001 and 25.036.  Education Code § 26.001 requires districts to have a procedure in place for parent complaints.  The claim, here, failed because the district had a grievance procedure for parents, which complied with Education Code § 26.001.

The Commissioner next held that the district violated Education Code § 25.036 when it revoked the student’s transfer.  The statute provides that, “Any child, other than a high school graduate, who is younger than 21 years of age and eligible for enrollment on September 1 of any school year may transfer annually from the child’s school district of resident to another district in this state if both the receiving district and the applicant parent or guardian or person having lawful control of the child jointly approve and timely agree in writing to the transfer.”  The main dispute in this case was the meaning of “transfer annually,” and whether that meant the agreement must be for a period of one year.  Based on the common definitions of the words and the context of the words, the Commissioner concluded that “transfer annually” means “move for a period of a year.”  Thus, the mid-year revocation of the student’s transfer agreement violated Education Code § 25.036.

Things to Remember:  Take note: T.E.A.’s position is that transfers cannot be revoked mid-year. 

MISCELLANEOUS

Hearing Examiners

WHAT IS THE STANDARD FOR REMOVAL OF A HEARING EXAMINER?

Case citation:  In re Paula Robnett-Theodorio, Dkt. No. 087-R8-0711 (Comm’r Educ.  August 30, 2013).

Summary:   Rogers, Morris, and Grover, L.L.P., a law firm that represents school districts, requested that the Commissioner of Education take action concerning hearing examiner Paula Robnett-Theodorio.  The petition alleged that in two cases involving nonrenewals, the hearing examiner used the good cause legal standard, which is the correct standard in termination cases.  It was also alleged that the hearing examiner did not file recommendations timely, and did not provide copies of recommendations to the board president.  The law firm contended that Robnett-Theodorio failed to meet the standards required for an independent hearing examiner.

Ruling: The Commissioner ruled that Robnett-Theodorio should not be recertified as a hearing examiner.  Under Texas Education Code § 21.257, an independent hearing examiner is required to issue a recommendation no later than the 60^th day after the date on which the Commissioner receives a teacher’s request for a hearing.  To issue a recommendation, an independent hearing examiner must draft, sign, and deliver the recommendation to the parties, the president of the school board, and the Commissioner.  The record showed that Robnett-Theodorio did not deliver the recommendation to the parties until the 61^st day after the Commissioner received the teacher’s written request for a hearing in one case, and 63 days after the written request in another case.  Thus, the recommendations in those two cases were not timely issued.

Under Texas Education Code § 21.257(d), an independent hearing examiner who fails to timely issue a recommendation may not be assigned a case for a period not to exceed one year.  The Commissioner can certify hearing examiners according to criteria established by the State Board of Education found at 19 Tex. Admin. Code § 157.41.  The Commissioner may decline to recertify an independent hearing examiner if an independent hearing examiner has failed to perform the duties of an examiner in a competent manner.  Issues of timeliness, accuracy, and decorum and control are considered in the determination of whether to recertify a hearing examiner.  Here, in addition to issues of timeliness, the evidence showed that Robnett-Theodorio used the incorrect legal standard in two nonrenewal cases.  In another case, she did not properly identify the type of contract at issue and the proposed contract action.  The Commissioner found those to be “significant errors in accuracy.”  Thus, the Commissioner concluded that Robnett-Theodorio should not be recertified as an independent hearing examiner.