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The Devilish Details on Student Prayer at Board Meetings

by Dean Micknal

The Fifth Circuit Court of Appeals issued an opinion last month that was widely reported as upholding the right to begin school board meetings with prayer.  Relying on the “legislative-prayer exception”, the Court unanimously rejected an argument by the American Humanist Association that Birdville ISD’s policy of allowing students to deliver invocations before school-board meetings ran afoul of the First Amendment’s Establishment Clause.

Headlines related to cases involving constitutional issues always give me a bit of heartburn.  This is especially true when the case delves into issues involving what is commonly referred to as the separation of church and state.  There is a good reason the Fifth Circuit has previously described this area of law as the “murky waters of the Establishment Clause.”  These types of constitutional issues are almost always incredibly fact-dependent and require careful consideration of one or more detailed legal tests.  This makes it difficult and often-times dangerous to attempt to distill a First Amendment case into a few catchy words.

This case is a perfect example of why districts should invoke the late, great Paul Harvey and make sure to consider “the rest of the story” when presented with this sort of information.  Contrary to what the headlines suggest, the Court was careful to avoid making any sweeping declarations as to the legality of prayer at school board meetings or in public schools in general.  In fact, the most telling statement can be found in the last paragraph of the last page, where the Court concludes that “[a]lthough it is possible to imagine a school-board student-expression practice that offends the Establishment Clause, this one, under its specific facts, does not.”

This parting thought is as much a warning as an approval. A careful reading of the decision shows that the Court’s application of the legislative-prayer exception was dependent on consideration of a multitude of factors, including, but not limited to:

  • The composition of the Board of Trustees;
  • The physical location of the Board meetings;
  • The roles and responsibilities of the Trustees;
  • The roles and responsibilities of any students attending Board meetings;
  • The composition of the audience attending the meetings;
  • Policies and practices regarding attendance during the ceremonial portion of a meeting;
  • Policies and practices regarding attendee participation/response to the ceremonial portion of a meeting;
  • The format/structure of the ceremonial portion of a meeting;
  • Policies and practices regarding selecting presenters for the ceremonial portion of a meeting;
  • Policies and practices regarding development and delivery of the presentation;
  • Factual characteristics regarding the actual tone of invocations given during ceremonial portion of a meeting;
  • A determination regarding who is the primary focus of invocations given during ceremonial portion of a meeting; and
  • Policies and practices regarding endorsement and/or disclaimer of viewpoint expressed during ceremonial potion of a meeting.

This does not necessarily mean that any deviation from the facts in the Birdville ISD decision would be fatal for purposes of defending a similar lawsuit.  However, each and every deviation is an opportunity for opposing counsel to distinguish a challenged policy from this narrow holding, and if successful, compel a new round of overly broad headlines.

If you have questions about how your District’s policies regarding prayer at Board meetings matches up with this ruling, please don’t hesitate to contact the school attorneys at Leasor Crass, P.C.

Sorry, Not Sorry

by Heather Castillo

Have you ever been involved in a Board-level grievance hearing and wondered, “How in the world did it get to this point?” It began with a simple mistake, a misunderstanding, or a less-than-respectful interaction, and then grew and festered into a grievance that went on for months. If the “offending party” had just promptly apologized or respectfully acknowledged his mistake, the grievance might have been resolved at the campus level or might not have been filed at all. The Administration finds itself in front of the Board at 10:00 p.m. (or later) because the “offending party” refused to apologize or acknowledge a mistake, or worse, attempted to justify it or shift the blame to someone else. In some cases, the “offending party” is not even present at the Board hearing.

Who is this “offending party”? It could be any employee. Here’s an example: A teacher who inadvertently miscalculates a grade. When a parent or the student questions the grade, the teacher responds in a condescending way and is slow to correct the grade.

Many grievances include a request (or demand) for an apology as part of the requested relief. Are these requests reasonable? Not usually, but in some cases, yes. Can a school district or one of its employees apologize or admit a mistake without creating legal liability? In some cases, yes. It depends on the specific facts of each case.

There are multiple legal articles that analyze the potential legal consequences for apologizing, the potential of apologies to avoid litigation, and the laws of various states that address the admissibility of apologies in court. For example, Texas Civil Practice & Remedies Code § 18.061 provides that a court in a civil case cannot admit evidence of a communication made to an accident victim or his family that “expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an individual involved in an accident” if it is offered to prove liability. However, a communication which also includes a statement concerning negligence or culpable conduct pertaining to an accident or event is admissible to prove liability.

A March 1, 2017, article written by John Council for Texas Lawyer magazine, entitled “In Litigation, Sometimes All It Takes Is Saying ‘Sorry’” discusses how apologies, while rare, sometimes assist in the settlement of lawsuits.[i] An interesting point in this article comes from Mark Lanier, a successful Houston plaintiffs’ attorney. He says he never asks the defendants he sues (drug manufacturers and medical devices companies) for an apology for fear that they will actually offer one. He wants juries to hear that no one ever offered his client an apology. Lanier says: “I’d hate for a witness to say ‘I’m sorry this happened.’ That takes the sting away from the jury. We live in a society that grants repentance and I want [the defendant] to be punished. I’ll only ask for an apology if they’re not going to apologize.”

Granted, school district grievances usually pale in comparison to lawsuits involving serious personal injuries and claims for millions in damages. But think of the Board of Trustees as the jury – a jury who can overturn the Administration’s grievance decisions or craft any other relief for the grievant that they see fit. A Board of Trustees generally expects the Administration to do all that it reasonably can to resolve grievances. The Administration will probably be in a better position before the Board if it can provide evidence that some type of apology was offered (if one was clearly due), or that a mistake was acknowledged and corrected.

Of course, some grievances cannot be avoided.  Some grievants are unreasonable. And, some will simply not stop until they get a Board hearing. As stated above, offering an apology or admitting wrongdoing can be complicated. It is always best to seek legal advice before doing so, especially if you might do so in writing, e.g., in a grievance decision letter.

If you or your staff have questions about a grievance, need assistance with responding to a parent or employee concern before a grievance is filed, or would like training related to any of these issues, the attorneys at Leasor Crass stand ready to assist.

[i] http://www.texaslawyer.com/id=1202779050706/In-Litigation-Sometimes-All-It-Takes-Is-Saying-Sorry

Appraisal Hoops

by Melissa Mozingo

by Melissa Mozingo

The Texas Education Agency adopted new rules for all administrator appraisals, including superintendents, on July 1, 2016, which are set out in Title 19 of the Texas Administrative Code, sections 150.1021-150.1028.  The new rules should be read in conjunction with Texas Education Code §§21.354 and 21.3541.

Under Texas Education Code §21.354(c), a school district has two options for the annual appraisal of school administrators, including superintendents:

1. the commissioner’s recommended appraisal process and performance criteria; or

2. an appraisal process and performance criteria must be:

A. developed by the district in consultation with the district- and campus-level committees established under §11.251; and

B. adopted by the board of trustees.

Under the first option, §21.354(c)(1), a district “may use the commissioner’s recommended process and performance criteria” for the annual appraisals for administrators (excluding principals).  Under the former rules, the commissioner provided a recommended appraisal process and performance criteria for superintendents. With the repeal of the previous rules, however, TEA only provided new appraisal rules for principals and other campus administrators, not superintendents.  Until the commissioner has proposed new rules for a recommended process for superintendent appraisals, the first option under §21.354(c)(1) is no longer available for use by school districts.

At this time, the only administrator appraisal option available to school districts for superintendents is §21.354(c)(2), which has two (2) requirements.  The appraisal process and performance criteria must be: “(A) developed by the district in consultation with the district- and campus-level committees established under §11.251; and (B) adopted by the board of trustees.”

Neither the new rules nor Texas Education Code §21.354 prohibits the use of the previous superintendent appraisal process and performance criteria.  However, if a school district chooses to use the superintendent appraisal that is the same or similar to the former commissioner recommended process, it must do so in compliance with §21.354(c)(2) by consulting with the district-level committee and submitting the process and criteria to the board of trustees for adoption.

Texas Education Code §21.354(d) states that, “[f]unds of a school district may not be used to pay an administrator who has not been appraised in the preceding 15 months.”  Should a district fail to comply with both requirements of §21.354(c)(2), then the administrator has not been properly evaluated and district funds may not be used to compensate the administrator.

For superintendent appraisals (and all other administrator appraisals in which the district has chosen to develop its own policy), it is recommended to:

  1. Call district- and campus –level meetings as soon as possible to discuss and develop the appraisal process and performance criteria for the evaluation instrument. For superintendents, the appraisal process and performance criteria should be developed in consultation with the district-level committee only.
  2. Have the Board of Trustees adopt the new appraisal process and performance criteria.
  3. Conduct the appraisal. Board approval and the appraisal may happen at the same meeting.

If you have questions about this or any other school law topic, please do not hesitate to contact the attorneys at Leasor Crass, P.C.

A Dog with a Bone: The Fight Over Personal Emails and Public Business

by Mike Leasor

by Mike Leasor

Advice we have been giving for several years was recently echoed by the Austin Court of Appeals in The Austin Bulldog v. Leffingwell.  This case involved whether or not the personal email addresses of the mayor of Austin, city council members and the city manager were subject to disclosure pursuant to a Public Information Act request.  The Austin Bulldog v. Leffingwell, No. 03-13-00604-CV, 2016 WL 1407818 (Tex. App.—Austin Apr. 8, 2016, no pet. h.).

The Bulldog is a website that bills itself as “nonprofit investigative reporting in the public interest.” In 2011, The Austin Bulldog made a request for all emails between the mayor, council members and the city manager including emails to and from each individuals personal email account.  The city sought to withhold the emails from the personal email accounts by seeking an opinion from the Attorney General.  The Attorney General ruled that most of the email were subject to disclosure as they consisted of communication sent to or from public officials in their official capacities and discussed business of the city.  The city dutifully turned the emails over to the newspaper, but only after redacting the personal email addresses of the city officials.

In redacting the email addresses, the city relied upon the Attorney General’s letter opinion in this case, which was based on the Attorney General’s interpretation of an exception listed in the Texas Government Code.  This exception states:  “Except as otherwise provided by this section, an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under this chapter.”  Tex. Gov’t Code § 552.137(a).  The Bulldog latched on to this and would not let go as it filed suit seeking a declaratory judgment.

The Bulldog argued that the personal email addresses were subject to disclosure based on the same argument that required disclosure of the other emails.  The Court sided with The Bulldog and threw it a big bone.  The Court found that “member of the public” was not defined by the Public Information Act and it looked to the plain meaning of the phrase.  Thus, the Court concluded that ordinary citizens and public official were not the same.  Rather, it concluded that a person who is a part of the government body is not an ordinary citizen for purposes of the Public Information Act.  This and the fact that the emails discussed public business required that The Bulldog receive the emails without the personal email addresses redacted.

This decision should be heeded by all public officials and employees regarding the use of personal email.  This case is in line with conservative legal advice we have given in the past, and it’s a good reminder to us all.  An email sent via a personal email address that discusses public business is subject to disclosure under the Public Information Act.  It should be noted now that the email address used to send or receive email discussing public business is also subject to disclosure if that email address belongs to a public official or employee.

If you have questions about this topic or any other school law topic, please do not hesitate to contact the attorneys at Leasor Crass, P.C.