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House Bill 674: Keeping Students on Campus

by Heather Castillo

House Bill 674 (“HB 674”) has two parts:

(1) it adds Texas Education Code (“TEC”) § 37.005(c), which prohibits out-of-school suspension (“OSS”) for students below 3rd grade, with some exceptions; and

(2)  it adds TEC § 37.0013, POSITIVE BEHAVIOR PROGRAM, which authorizes districts to create new disciplinary alternatives for students below 3rd grade who engage in conduct eligible for OSS under the district’s Student Code of Conduct (“SCOC”).

No OSS for students below 3rd grade, unless…

HB 674 applies beginning with the 2017-2018 school year. It prohibits districts from placing students below 3rd grade in OSS, unless the student, while on school property or attending a school-sponsored or school-related activity, engages in conduct that contains the elements of:

  • a weapons offense under Texas Penal Code § 46.02 (Unlawful Carrying Weapons) or 46.05 (Prohibited Weapons)
  • assault
  • sexual assault
  • aggravated assault
  • aggravated sexual assault
  • selling, giving, or delivering to another person or possessing, using, or being under the influence of marijuana, a controlled substance, a dangerous drug, or an alcoholic beverage

Positive Behavior Programs

HB 674 also provides districts with the authority to create Positive Behavior Programs and train staff regarding disciplinary alternatives for students below 3rd grade. In consultation with a district’s campus behavior coordinators and Regional Education Service Center representatives, a district may now create disciplinary alternatives for students below 3rd grade who violate the SCOC and, in accordance with the new TEC § 37.005(c) discussed above, cannot be placed in OSS. Such programs must:

(1)  be age-appropriate and research-based;

(2)  provide models for positive behavior;

(3)  promote a positive school environment;

(4)  provide alternative disciplinary courses of action that do not rely on the use of in-school suspension, OSS, or placement in a DAEP to manage student behavior; and

(5)  provide behavior management strategies, including:

(A)  positive behavioral intervention and support;

(B)  trauma-informed practices;

(C)  social and emotional learning;

(D)  a referral for services, as necessary; and

(E)  restorative practices.

If you or your staff have questions about this new law, or would like training related to any of these issues, the attorneys at Leasor Crass stand ready to assist.

Unfortunately, There is More Than One Bad Apple

by Mike Leasor

The Texas Legislature passed, and the Governor recently signed, Senate Bill 7 in an attempt to address what many have come to view as an epidemic of inappropriate relationships between educators and students.  This piece of legislation, which becomes effective on September 1, 2017, is one of the most talked about coming out of this legislative session.  It is imperative that administrators pay close attention to this law and the topic it covers.  Your certificate may depend on it.

Following is a bullet point list of the significant additions to the law in this area:

  • The principal must notify the superintendent not later than the seventh business day after the date of an educator’s termination of employment or resignation following an alleged incident of misconduct or the principal knew about an educator’s criminal record.
  • The superintendent must now notify the State Board for Educator Certification (“SBEC”) by filing a report with the board not later than the seventh business day after the date the superintendent receives a report from a principal.
  • Immunity is still provided for reports made in good faith.
  • An educator is now prohibited from inappropriate behavior with any student known to be enrolled in any public or private primary or secondary school.
  • Mandatory reporting by a superintendent to SBEC under 21.006(b)(2) is now triggered by termination and evidence of wrongdoing rather than termination based on evidence of wrongdoing.
  • The superintendent must complete an investigation of any allegation involving abuse, unlawful acts, romantic relationships, or sexual contact with a student or minor and report it to SBEC even if the educator is terminated or leaves the district.
  • Requires notice to parents of a student with whom an educator is alleged to have engaged in misconduct involving abuse, an unlawful act, romantic relationship, or sexual contact.
  • Although districts currently have policies in place regarding staff/student electronic communications, the policy must now have a provision that staff personal phone numbers and email addresses are not required to be disclosed.
  • SBEC is now authorized to impose administrative penalties of up to $10,000 against principals and/or superintendents who fail to comply with the reporting requirements.
  • Failure to comply with the reporting requirements with the intent to conceal an educator’s criminal record or alleged incident of misconduct is punishable as a state jail felony.
  • Applicants must now disclose if they have even been charged with having an inappropriate relationship with a student.
  • If a certified employee assists an educator who has had an inappropriate relationship with a student in gaining employment in another district, that employee’s certificate may be revoked.
  • If an educator is convicted of a felony involving an inappropriate relationship, it prohibits TRS payments.

If you would like more information on this topic or seek a review of your district’s policies or procedures regarding this new law, please do not hesitate to contact one of the attorneys at Leasor Crass, P.C.

OSERS Takes Aim at Exclusionary Discipline

by Dean Micknal

by Dean Micknal

It may be hard to believe, but summer is almost over.  This means that students will soon be returning to classrooms, which, according to the Department of Education, is where they need to stay.

Earlier this month, the Office of Special Education and Rehabilitative Services (OSERS) issued a strongly worded “Dear Colleague Letter” addressing concerns regarding the use of short-term removals as a disciplinary measure for children with disabilities.  A copy of the guidance can be accessed here.

The guidance states that recent data regarding short-term disciplinary removals “strongly suggest” that IEPs aren’t being implemented appropriately.  In response, OSERS is reminding schools that IDEA requires the provision of appropriate behavioral supports to children with disabilities who require such supports.  Failure to do so could result in violating the Least Restrictive Environment mandate and/or denying such students a free, appropriate public education.

What does this mean for the upcoming school year?  Districts should anticipate that the use of any exclusionary disciplinary measures involving students with IEPs may come under greater scrutiny than before.  While this doesn’t mean that disciplinary removals cannot be used, it is imperative that districts document the consideration, development, and implementation of positive behavioral interventions and supports in response to behavior that may otherwise be subject to disciplinary consequence.

The guidance raises two other important points for consideration.  First, districts are expected to understand that the obligation to provide positive behavioral interventions and supports extends to any student with an IEP, regardless of whether the behavior is a manifestation of the student’s disability.  For example, a student with a hearing impairment has the same right to receive positive behavioral interventions and supports as a student with an emotional disturbance.

Second, OSERS is openly questioning the legitimacy of what is commonly referred to as the “10 FAPE Free Days” rule.  The DCL does not explicitly contradict the authority to impose short-term removals for code of conduct violations that is found at 34 CFR §300.530.  However, OSERS is expressing concern that characterizing that authority as providing 10 “free days” may “discourage school personnel from considering whether behavioral supports are needed to address or improve patterns of behavior that impede learning before, during, or after short-term disciplinary removals are implemented.”  In other words, short-term disciplinary removals may not constitute denials of FAPE, but they still require the behavioral interventions provided by the IEP to be reviewed and/or revised as necessary.

As a practical matter, the guidance does not impose any new laws or requirements.  However, it does suggest that current disciplinary practices are going to be facing increasing scrutiny.  Administrators should be aware of this fact and take steps to ensure disciplinary procedures are properly followed and documented.  If you have questions about the new guidance, or student discipline in general, the attorneys at Leasor Crass, P.C. are ready to help.

Mama Bear on a Mission: Can a Parent Demand Your Termination?

by Christie Hobbs

by Christie Hobbs

If you work with students, you’ve probably upset a parent or two along the way.  Even the best educator can find himself as the target of a “mama bear”—a parent who is determined to protect her children at all costs.  Sarah Palin famously said, “If you thought pit bulls were tough, you don’t want to mess with mama grizzlies.”  What’s a district to do when a parent demands an educator’s termination or demotion and takes her appeal all the way to the Commissioner of Education?

This issue went to the Texas Commissioner of Education in Petitioner v. Judson ISD, Docket No. 050-R10-03-2014 (Tex. Comm’r Educ. 2015).  A Judson ISD parent was unhappy with a discipline matter involving her child.  The child was involved in several altercations at school. The parent thought the school was incompetent and mishandled student discipline relating to her child.

The parent filed a Level One grievance and requested that the principal be demoted and held accountable for her actions.  The school district did not demote or terminate the principal.  However, the school reportedly took some actions in response to the grievance.  The parent appealed all the way to the Board of Trustees, who affirmed the Level One decision.  The parent then appealed to the Commissioner.

It was concluded that the Commissioner did not have jurisdiction over the parent’s appeal because the Commissioner does not have (1) appellate jurisdiction over student discipline, or (2) authority to order a school district to demote or terminate a school employee.  Jurisdiction is the power to exercise authority or decide cases.  If a court or governmental body does not have jurisdiction over a person or matter, it does not have authority to decide the outcome of a dispute.

Texas Education Code § 7.057 describes the Commissioner of Education’s jurisdiction.  It allows any person to appeal to the Commissioner if he is aggrieved by:

(1)  the school laws of this state; or
(2)  action or decision of any school district board of trustees that violate:

(A)  the school laws of this state; or
(B)  a provision of a written employment contract between the school district and a school district employee, if a violation causes or would cause monetary harm to the employee.

This section gives broad authority to the Commissioner to hear appeals on a wide range of issues.  However, this authority does not extend to appeals of student disciplinary actions.  Texas Education Code § 7.057(e)(2) states:  “This section does not apply to . . . a student disciplinary action under [Texas Education Code] Chapter 37.”  While the parent had every right to appeal a student discipline matter through the school district’s grievance policy, the Board’s decision could not be appealed to the Commissioner.

The Commissioner also concluded that it did not have authority to order a school district to demote or terminate a school employee.  The Commissioner cited to three statutes which provide that hiring, firing, and placement decisions belong to local school districts, through the respective roles of the Superintendent and the Board of Trustees.  See Tex. Educ. Code §§ 11.1511, 11.1513, 11.201(d)(2).  Accordingly, the Commissioner concluded that it could not grant the parent’s request and order a school district to demote the principal.  Even if the Commissioner wanted to side with the parent and demote the principal, it would not have authority to do so.

This decision underscores the authority given by statute to local school districts with respect to student discipline and certain personnel matters.  A parent can argue loudly for the demotion or termination of a school employee with whom he or she is dissatisfied.  If the parent goes through a school district’s grievance policy, the hearing officers and the Board are required to consider the grievance and listen to the parent’s concerns.  However, the Commissioner will not force a school district to demote or terminate a school employee under these circumstances.  This decision shows that school employees still have some refuge from the mama bears of the world.

Making Amends: Processing Requests to Change Student Records

by Dean Micknal

by Dean Micknal

Parents will occasionally ask for changes to information that is documented in a student’s record.  Such a request may result from a dispute as to the veracity of what has been recorded.  For example, a parent may disagree with the specific wording used to characterize a student’s alleged misconduct in a disciplinary referral and ask that the description be changed so the conduct sounds less serious.  Other times, parents may ask the school to remove the information altogether…perhaps out of concern that the mere reference to allegations of sexual harassment or other controversial issues might be enough to bias a future reviewer or a college admissions committee against the student even if the allegations were never proven.

These sorts of requests invoke an important, but lesser known, provision of FERPA.  Many educators and administrators understand this federal law as imposing two mandates:

  1. A prohibition on disclosing personally identifiable information from an education record to a third party without written consent; and
  2. An obligation to provide a parent or eligible student with an opportunity to inspect and review his or her education records within 45 days of receiving a written request.

What is sometimes overlooked is that Section 99.21 of the FERPA regulations also requires that a parent or eligible student be given an opportunity for a hearing to challenge the content of the student’s education records on the grounds that the information is inaccurate, misleading, or in violation of the privacy rights of the student.

Just to be clear, FERPA doesn’t require schools to change student records.  However, this does mean that ignoring or dismissing a request without providing an opportunity for a hearing is a violation of federal law.

Additionally, the regulations provide that if the school decides against amending an education record as a result of a hearing, it must inform the parent of the right to place a statement in the record commenting on the contested information or stating why the parent disagrees with the decision.  If such a statement is placed in the record, the district is legally obligated to:

  1. Maintain the statement with the contested part of the record for as long as the record is maintained; and
  2. Disclose the statement whenever it discloses the portion of the record to which the statement relates.

One interesting consideration is how these rules apply to special education records.  As most people know, parents have the right, pursuant to 34 CFR §300.507(a) of IDEA’s implementing regulations, to initiate a due process hearing on matters relating to identification, evaluation, or educational placement, and provision of a free appropriate public education.  Somewhat confusingly, requests to amend the content of special education records aren’t subject to a hearing under this provision.  This is because 34 CFR § 300.568 of the IDEA regulations defers to the FERPA regulations described above with respect to amending special education records.  Consequently, a parent requesting an amendment to special education records must be provided with the same opportunity for a hearing pursuant to § 99.21 of the FERPA regulations as any other parent seeking to amend any other education record.

It is important to understand this distinction to avoid inadvertently violating FERPA and/or IDEA.  In short, a district can require a parent who disagrees with a decision that an ARD Committee has made regarding an IEP to seek relief from a TEA due process hearing officer.  However, requests to amend the record of that decision must be processed in a manner that conforms to §99.21 of the FERPA regulations.

If you have questions about a request to amend an education record, or concern about some other aspect of FERPA, please don’t hesitate to contact the attorneys at Leasor Crass P.C.

Straight Outta NOLA! The Fifth Circuit Rules on the Constitutionality of a Student’s Rap Song

by Joe Tanguma

by Joe Tanguma

The entire Fifth Circuit recently reversed an earlier panel decision and issued a 13-3 ruling on whether disciplining a student for off-campus conduct that occurred away from school, outside of any school functions and did not involve any school resources would violate his First Amendment free speech rights.

The case

The student, Taylor Bell, posted a rap recording against two high school teachers/coaches that contained threatening language against them, both on his public Facebook account and YouTube. Bell identified the two individuals by name, alleged misconduct by the coaches against female students and described the violent acts that they would suffer as a result. The rap lyrics directed to the coaches included, “betta watch ya back,” “I’m gonna hit you with my rueger,” “going to get a pistol down your mouth,” and “middle fingers up if you want to cap that n****.” When questioned by school officials, Bell admitted posting it publicly on Facebook and YouTube because he knew that people would listen to it and that it would be heard by many students. Following a disciplinary hearing, in which Bell was represented by an attorney, the school placed Bell in an alternative educational program until the end of the grading period, which was about six weeks. Bell sued under the First Amendment, and here we are today.

The Court began by stating that students do not forfeit their First Amendment rights, but they are not absolute and must be tempered in the school context. The Fifth Circuit ruled that the substantial disruption test it employs in determining the regulation of student free speech also applies for off-campus conduct. The substantial disruption test does not require proof of an actual disruption at school, but instead looks at whether a substantial disruption at school could reasonably be forecast as a result of the speech. If so, the speech could be regulated through discipline. The Court did not delve into whether the two teachers were guilty of the alleged misconduct that Bell claimed motivated him to get the matter into the public for other students to see. Instead, the Court ruled against Bell, holding that a school official reasonably could find Bell’s rap recording threatened, harassed, and intimidated the two teachers. In arriving at this ruling, the Fifth Circuit stated: “Our holding concerns the paramount need for school officials to be able to react quickly and efficiently to protect students and faculty from threats, intimidation, and harassment intentionally directed at the school community.”

What does this mean as a practical matter?

Schools have been struggling with students’ misuse of social media against other students and employees outside of the school setting for many years now. The Fifth Circuit recognized the reality that social media has no boundaries—what a student does outside of the school electronically through social media inevitably will make its way through the school doors, in some form or fashion. This case is a victory for school districts and confirms that substantial disruptions that can be reasonably forecasted by a student’s off-campus speech can be addressed by the school.

However, this is not a blank check for blanket disciplining any off-campus speech by a student. The Fifth Circuit’s lengthy and nuanced analysis and ruling is tied to the facts of this specific case, but it still provides excellent guidance as we move forward on this issue.

What steps should we take when dealing with a student’s off-campus use of social media?

The Bell case illustrates the importance of an investigation into these kind of matters including documentation not only any actual or anticipated disruption caused at the school, but also interviews with the student involved and others to flesh out whether there was any intent to direct the speech towards the school environment.

In interviewing students involved in off-campus speech, discuss with them their motives for the speech, and obtain signed handwritten statements having them commit to their explanation and response.

As part of your review process, find out: Where was the speech posted? Did the speech involve school events? Was it in a public or private setting? How was it disseminated? Who received it and what did they do with it? Were students or parents bringing this to the attention of the school? Was the speech discussed in classes or cause interruptions of instruction? Did students or other individuals show negative responses to the speech (for example, not coming to school/reporting to work)? What was the level of awareness amongst the school of the speech and what was the overall impact?

Look into and document the responses and reactions from the intended targets: Did they know about the speech directed towards them? Did it create an adverse reaction on their part? Were they able to continue to come to school and function normally?

Ask yourself whether a reasonable person would find the off-campus speech harassing, intimidating or threatening to another?

Document and retain your investigation notes as well as any calls to the school, media publicity, or other outside interferences with normal school operations that may occur.

Understand that the First Amendment does not prohibit you from taking non-disciplinary steps outside of discipline in these kind of cases. To name just a few, you can also consider: conferences with the parents, daily or periodic sit-downs with the student, counseling if necessary, changes in the student’s class schedule and campus assignment, assigning additional monitors before and after school and during transition time to both the student perpetrator and victims, revoking the student’s ability to use computers at school, etc.

The Fifth Circuit decision here is 102 pages long and is rich with detail and nuance. The next time you are confronted with an off-campus conduct issue that you believe merits investigation and possible discipline, you should consider a legal consultation to assist with your roadmap of the investigation and response and to get an opinion on whether discipline will likely pass muster under the Fifth Circuit’s standards as announced in this case.

Finally, stay tuned! This is a significant decision in favor of school districts and will likely be appealed to the United States Supreme Court for review. Several other federal courts across the nation have issued rulings on these matters, some in favor of the student, some in favor of the school. The uncertainty created by different rulings from various courts may prove to make this case attractive for Supreme Court review and final guidance.

Out In the West Texas Town of El Paso

by Mike Leasor

by Mike Leasor

A dispute over truancy charges filed by the El Paso Independent School District against the parents of several home schooled children in the same family has led the Eighth Court of Appeals to rule that district attendance officers can ask parents to provide evidence that shows their children are being taught, and can ensure that all students are either enrolled in school or are in a “bona fide home school” when there is credible suspicion. The Court further stated that parents who home school children do not have an absolute constitutional right to home school and must abide by state education requirements. El Paso Indep. Sch. Dist. v. McIntyre, 2014 Tex. App. LEXIS 8567 (Tex. App. El Paso Aug. 6, 2014).

The McIntyres have nine children, including the five minor children who are parties to the law suit. After completion of the Fall 2004 semester, the McIntyres withdrew their children from private school to begin home schooling them. Initially, the children were taught out of empty space in a motorcycle dealership owned by the father and his twin brother. The brother testified in his deposition that during the time home schooling operated out of the dealership, he never observed the children pursuing traditional schoolwork. While the children would sing or play instruments, he never saw them reading books or doing arithmetic, nor did he observe any computers or other school equipment. The brother also testified that he overhead one of the McIntyre children tell a cousin that they did not need to do schoolwork because they were going to be raptured. The brother discussed the situation with his parents, the children’s grandparents. In August 2005, due to a family dispute, the home school was moved from the motorcycle dealership to a rental house owned by the McIntyres.

In January 2006, the District received an anonymous complaint that the McIntyre children were not being educated. In November, the grandparents met with Mark Mendoza, the District’s designated attendance officer, and expressed concerns that their grandchildren were not attending school or otherwise receiving a proper education. In December 2006, Mendoza asked a representative from Hornedo Middle School to visit the McIntyre home and inquire about the curriculum used to teach their children. The McIntyres answered the door, but the mother said only that she was tired of being harassed and would call her attorney. Lynda Sanders of Polk Elementary School was also asked to go to the McIntyre home and obtain a signed home school verification form. The McIntyres refused to sign the form or provide any other information regarding their homeschool curriculum. In January 2007, following their refusal to provide information to campus personnel, various notices and warnings were given to the McIntyres notifying them of their children’s failure to attend school, and requesting conferences. The McIntyres did not cooperate with any of the requests for information or meetings.

In the arguing of this case, both sides relied heavily on TEA v. Leeper, 893 S.W.2d 432 (Tex. 1994). In Leeper, home school parents and home school curriculum providers (the plaintiffs) brought a class action suit against state officials (the defendants), challenging construction of compulsory attendance laws. Leeper, 893 S.W.2d at 432. The plaintiffs sought a declaratory judgment that the defendants had misinterpreted the private school exemption under Section 25.086(a) of the Texas Education Code. Id. at 438. The plaintiffs also claimed that the defendants “enforcement of the compulsory attendance law infringed upon their constitutional rights, in violation of the Civil Rights Act, 42 U.S.C. § 1983.” Id. As a result, the plaintiffs sought an injunction prohibiting all school districts and attendance officers from enforcing the compulsory attendance law against bona fide home schools. Id; McIntyre at 11.

Leeper does not hold, or even imply, that every alleged “home school” automatically fits within the exemption. Rather, the case simply allows certain home schools that meet specific requirements to qualify as “private or parochial schools” for purposes of the exemption. Nothing in Leeper suggests that an attendance officer does not have the authority to investigate truancy claims, or that home school parents need not prove they are teaching their children in a bona fide manner from an appropriate curriculum. Leeper merely provides the possibility for a home school to qualify for exemption from compulsory attendance laws. McIntyre at 11-12. The Court of Appeals recognized Leeper for what it does and does not say, in effect following the Supreme Court on this issue.

The Court of Appeals also clarifies that Section 25.091(b) of the Education Code vests certain authority in school district attendance officers. Included is the authority to: (1) investigate each case of a violation of the compulsory school attendance requirements referred to the attendance officer; (2) monitor school attendance compliance by each student investigated; (3) make a home visit or otherwise contact the parent of a student who is believed to be in violation of compulsory school attendance requirements; and (4) enforce compulsory school attendance requirements by filing truancy complaints. Tex. Educ. Code Ann. § 25.091(b).

The McIntyres did not challenge the authority given to school attendance officers under Section 25.091(b). Instead, they appeared to claim a fundamental right to be free of any state supervision or regulation concerning whatever education they choose to provide to their children in their home. They provided no support for such a right, much less sufficient support to show such a right is clearly established. Consequently, the Court of Appeals followed Leeper and ruled that El Paso ISD did the proper thing when it attempted to establish that the McIntyre’s were indeed violating the truancy laws. As Chief Justice Ann Crawford McClure wrote in the Aug. 6 opinion, “No parents have ever prevailed in any reported case on a theory that they have an absolute constitutional right to educate their children in the home, completely free of any state supervision, regulation, or requirements.” McIntyre at 48.

While the decision does not break any new legal ground, districts receiving credible information that home schooling is not taking place can rely on the holding as affirmation that they have the right to investigate and pursue truancy actions if necessary.

If you have additional questions about home schoolers or the truancy laws please do not hesitate to contact one of the school law attorneys at Leasor Crass, P.C.

 

 

Unsweet Tea: Responding to Sexual Harassment Complaints

MIKE_2

by Mike Leasor

In Kelly v. Allen Indep. Sch. Dist., 2014 U.S. Dist. LEXIS 12613 (E.D. Tex. Feb. 2, 2014), the parents and next friends of C.K., a minor, (“Plaintiffs”) brought suit under Title IX against Allen Independent School District (“AISD” or “Defendant”), asserting a cause of action for sexual harassment by other students and that Defendant was deliberately indifferent to the risk of harm to C.K.

C.K. is a student in the Special Education Program at AISD since beginning preschool and has been diagnosed with mild cerebral palsy and attention deficit hyperactivity disorder – combined type. C.K. has both physical and mental disabilities. C.K. enrolled at the Curtis Middle School in the fall of 2010 for the 2010-2011 school year. It is contended that during this school year, B.H. began to harass and bully C.K. by making fun of the way he walked and mimicking his disability. B.H. would take C.K.’s glasses. Finally, B.H. and some of his friends would forcibly put C.K. into a submissive position and physically hold him down to the floor of the gym locker room and engage in an act known as “t-bagging,” which involved B.H. grinding his crotch in C.K.’s face repeatedly. The evidence also reveals that B.H. would ask C.K. if he wanted to be his “boyfriend” or “girlfriend.” This harassment and bullying occurred most frequently in gym class, where the students were instructed to change into gym clothes. The students were not supervised by an instructor during these changing times. Plaintiffs assert because of the harassment, C.K. could not concentrate in school, which caused his grades to suffer. C.K. failed seventh grade math and, in classes where B.H. was also present, he would constantly look over his shoulder out of fear of further harassment and abuse from B.H.

On December 9, 2010, C.K. reported that he had been targeted at school, which caused Assistant Principal Robert Puster (“Puster”) to meet with C.K. At that time, C.K. reported that B.H. took C.K.’s glasses and was running around with them. C.K. reported that he chased B.H. and got the glasses back, and that “a few weeks ago several boys started ‘T-bagging everybody.’” When asked what that meant, C.K. stated that the boys would hang their crotch in people’s faces or “hump” them. C.K. reported that B.H. and T.B. were responsible for the “T-bagging.” This was the first reported incident of “T-bagging” and the first reported incident that occurred between C.K. and B.H. As a result of this report, Puster and the Curtis Middle School Principal Becky Kennedy (“Kennedy”) began an investigation into the report. Between December 9 and 10, 2010, Puster and Kennedy took statements from more than fifty students who might have witnessed the incidents that C.K. alleged, including B.H. and T.B.

The witness statements revealed that the “T-bagging” occurred at the beginning of P.E. class when the students would come into the gym and sit on the floor while they waited for roll call or in the locker room changing area. B.H. and T.B. reportedly would make their way through the group of students and hang their crotches in students’ faces or “hump” them. The students reported that this would occur when there was no adult supervision. Pending the investigation, Puster assigned B.H. and T.B. to in-school suspension (“ISS”). On December 13, 2010, Puster issued “Disciplinary Referrals” for B.H. and T.B. and recommended their placement at the DAEP campus for twelve weeks. Puster informed C.K.’s parents to keep them included in the matter.

On December 13, 2010, C.K.’s mom sent an e-mail to Principal Kennedy concerning difficulty that C.K. was having at school, including making friends, not being invited to parties, students not sitting with him during lunch, and students not working with him in science class. C.K.’s mom requested assistance in finding clubs, programs and peer groups for C.K. to join to help in making friends.  In addition to those general problems, C.K.’s mom reported an incident involving C.K. and a female student, K.M., which occurred earlier that day. While C.K. was waiting for his mom to pick him up, K.M., a girl who was friends with the boys who were disciplined for “T-bagging,” pulled hard on the back of C.K.’s jacket and asked why C.K. was causing trouble for her friends.

On December 14, 2010, in response to an e-mail from C.K.’s mom, Kennedy forwarded the e-mail to Mr. Rick Nevil (“Nevil”), who sponsored the Fellowship of Christian Athletes (“FCA”) club. Kennedy asked Nevil to invite C.K. to join in FCA meetings. C.K. was also invited to join a Social Skills group.

In addition, Puster conducted an investigation into the after-school incident reported by C.K. K.M. was immediately assigned to ISS for the remainder of December, 2010, for her actions. In addition, Puster issued K.M. a Disciplinary Referral for assault, and recommended a mandatory placement in DAEP for twelve weeks. K.M. remained in ISS through December 17, 2010, pending a final determination concerning the DAEP placement, and K.M.’s mother did not oppose the DAEP placement for the full twelve weeks.

A school district that receives federal funds may be liable under Title IX for student-on-student harassment if the district:

  1. had actual knowledge of the harassment;
  2. the harasser was under the district’s control;
  3. the harassment was based on the victim’s sex;
  4. the harassment was “so severe, pervasive, and objectively offensive that it effectively bar[red] the victim’s access to an educational opportunity or benefit”; and
  5. the district was deliberately indifferent to the harassment.

First, Defendant argues that it had no actual knowledge of the harassment. A district can escape liability if it can show that it did not know of the underlying facts indicating a sufficiently substantial danger and that it was therefore unaware of a danger, or that it knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.  In other words, to prove actual knowledge exists, the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

Plaintiffs argue that the student witness statements describe the sexual harassment and abuse suffered by C.K. and other students occurred during gym class. Plaintiffs contend that the District is deemed to have had actual knowledge of the sexual harassment given the pervasive and ongoing abuse of other students.

The Court ruled that there is no evidence that any of Defendant’s school officials were aware of facts indicating a sufficiently substantial danger to C.K., or that it knew of the underlying facts, but believed that the risk was insubstantial or nonexistent. The evidence establishes that the “T-bagging” incidents were first reported to Defendant on December 9, 2010. Plaintiffs’ own evidence suggests that C.K. had not had any problems with B.H. prior to these reported incidents. Furthermore, C.K.’s testimony establishes that the first incident of “T-bagging” occurred on December 6, 2010, and he first reported the misconduct to his parents on December 8, 2010.  Plaintiffs do not dispute the fact that the incidents occurred without warning to any school official and outside of adult supervision. It is also undisputed that at the time Defendant officials learned of B.H. and T.B.’s conduct, they immediately placed both students in ISS; therefore, removing them from contact with C.K. C.K. acknowledges that he never reported “T-bagging” or any other misconduct to the P.E. coaches or any other school official prior to December 9, 2010.  

Second, liability under Title IX is limited to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs. Where, as here, the misconduct occurs during school hours and on school grounds the misconduct is taking place under an operation of the funding recipient.  In these circumstances, the recipient retains substantial control over the context in which the harassment occurs.  The Court finds that Defendant did have substantial control over both the harasser and the context in which the harassment occurred regarding the “T-bagging” incidents. This occurred on-campus, during gym class, and during school hours. The gym class was supervised by three coaches. While it is true that the harassment occurred while the gym teachers were not present, or not supervising the class, the Court finds this argument by Defendant disingenuous. If the Court agreed with Defendant’s argument that a district did not have substantial control simply because an adult supervisor was not looking, this would allow a school district to purposely escape liability simply by looking the other way or avoiding supervising its students while they were on-campus. This is not the result intended by Title IX or the relevant case law, and the Court finds that Defendant had substantial control over both B.H. and T.B., the harassers, and the context in which the harassment occurred.

Third, Plaintiff must also demonstrate that the harassment occurred because C.K. was a male. There is simply no evidence from which the Court can conclude that the harassment occurred based on C.K.’s sex. The “T-bagging” incidents that occurred during gym class were directed at both males and females.  In his statement, C.K. asserted that B.H. and T.B. were “T-bagging everybody.” Further, there is no indication that Defendant officials enforced the bullying or harassment policies different with respect to incidents involving C.K. as opposed to other students. There is no evidence from with the Court can conclude that the harassment itself was based on C.K.’s sex, or that Defendant treated incidents of bullying and harassment between girls differently than it treated incidents between boys.

Fourth, Plaintiff must also demonstrate that the harassment was “so severe, pervasive, and objectively offensive” that it effectively barred the victim’s access to an educational opportunity or benefit. Based on the information currently before the Court, it appears that resolution of this factor is likely to be a fact question for a jury to determine. Because the Court has already recommended that Defendant’s motion for summary judgment be granted on other grounds, the Court did not address this factor.

Lastly, Plaintiff must demonstrate that the district was deliberately indifferent to the harassment. A school district is deliberately indifferent only if its actions are clearly unreasonable in light of the known circumstances. That is a high bar, and neither negligence nor mere unreasonableness is enough. Schools are not required to remedy the harassment or accede to a parent’s remedial demands and courts should refrain from second-guessing the disciplinary decisions made by school administrators.  In the record presently before the Court, there is no evidence to indicate that the Defendant school district was deliberately indifferent to the harassment. Prior to C.K.’s report of bullying on or about December 9, 2010, no reports were made alleging that C.K. was having any trouble with B.H., T.B., or K.M. Further, upon receiving C.K.’s report on December 9, 2010, Defendant launched an investigation that involved interviewing over 50 students, various staff members, and both the principal, Kennedy, and assistant principal, Puster investigated C.K.’s allegations. Defendant took immediate action by placing B.H. and T.B. in ISS while the investigation was pending, thereby removing them from other students that could be subjected to further bullying and harassment. Defendant then recommended the placement of B.H. and T.B. in DAEP for twelve weeks, where they remained until well after C.K. was withdrawn from the school district. It appears that Defendant took many steps to assist C.K. in being successful at Curtis Middle School, and Defendant took C.K.’s allegations of bullying and harassment very seriously. Defendant counseled C.K., disciplined and removed the problem students from Curtis Middle School, changed C.K.’s class schedule, allowed C.K. to wait in the front office after school, invited C.K. to join student groups, checked in with C.K. periodically, and met with his parents, as well as the parents of the alleged harassers.

This case, with its facts pulled from the everyday dealings at any school in Texas, is very instructive.  The Court takes you through each of the five elements required to prove Title IX sexual harassment.  The real lesson here though, is to take each allegation seriously, whether it be same sex or opposite sex harassment.  The District should conduct an investigation and take reasonable remedial action against the harasser.  To ignore a claim, is to place the District at risk of losing in litigation.

If you have additional questions about Title IX please do not hesitate to contact one of the school law attorneys at Leasor Crass, P.C.

 

Calling Bill Clinton: When “Mandatory” Doesn’t Really Mean Mandatory

by Christie Hobbs

by Christie Hobbs

While some words in the English language may mean more than one thing, there are many words which have fixed, straightforward definitions.  “Mandatory” usually means only one thing:  “required by a law or rule; obligatory.”  When we say something is mandatory, we don’t tack on a list of options or exceptions.  Usually.  That is, until someone brings up student discipline.

In the context of assigning students to alternative school, “mandatory” doesn’t always mean mandatory.  For example, if a student commits an assault on campus, your Student Code of Conduct may follow the language in Texas Education Code Section 37.006(a), which states that such a student “shall” be removed from class and assigned to the District Alternative Education Program (“DAEP”).  “Shall” sounds mandatory, right?  It sounds like the kid’s headed straight for DAEP.  Not quite so fast.

Texas Education Code Section 37.001(a)(4) requires that administrators consider several mitigating factors before making a decision to remove a student from class, such as removal to DAEP, suspension, expulsion, or placement in a juvenile justice alternative education placement (“JJAEP”).  This requires that the mitigating factors be considered even when that decision concerns a mandatory placement.

The mitigating factors that must be considered are:

  1. self-defense;
  2. intent;
  3. the student’s disciplinary history; and
  4. a disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct.

Importantly, administrators are required to consider the mitigating factors before making the decision to assign a student to DAEP.  This doesn’t mean that a student cannot be assigned to DAEP if she had no prior disciplinary problems before she assaulted someone on campus.  It doesn’t mean that a student cannot be suspended if he got into a fight out of self-defense.  Administrators can still assign a student to DAEP if a mitigating circumstance exists, as long as they have given fair consideration to these factors.

The days of “zero tolerance” are long gone.  Under certain circumstances, these factors may justify modifying an otherwise mandatory discipline placement.  In all circumstances, these factors must at least be considered.  An administrator may violate Section 37.001(a)(4) if he assigns a student to DAEP without giving any consideration to self-defense, intent, disciplinary history, or disability—even if the assignment was mandatory under the Student Code of Conduct.

School districts should ensure that campus administrators consider the mitigating factors every time they suspend, expel, or assign a student to DAEP or JJAEP.  When students appeal these assignments, reviewing administrators should evaluate whether the mitigating factors were considered at the time of the placement.  If it is determined that they were not considered initially, the factors should be considered on appeal.

As we often advise our clients, if it isn’t documented, it didn’t happen.  One practical way of ensuring that the factors are considered is to include a question or check-box on discipline forms where campus administrators indicate whether or not they have considered each of the factors.  Schools may consider revising their form letters notifying parents of discipline assignments to include a statement that the assignment was made after the administrator considered the role of self-defense, intent, disciplinary history, or a disability in the offense.

“Mandatory” may not always mean mandatory, but Christie Hobbs and the Leasor Crass legal team are always here to help you sort through your next student discipline dilemma.