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Reporting Educator Misconduct – “Who, What & When” as of September 1, 2017

by Dean Micknal

The Texas Legislature passed Senate Bill 7 (“SB 7”) this summer in an effort to address the increasing number of inappropriate relationships between educators and students being reported.  The legislation, which became effective on September 1, 2017, included significant changes to the requirements for reporting educator misconduct found in Section 21.006 of the Texas Education Code.

Principal to Superintendent

Prior to the passage of SB 7, TEC 21.006 required a “superintendent or director of a school district, open-enrollment charter school, regional education service center, or shared services arrangement” to report certain acts of misconduct to the State Board for Educator Certification (SBEC).  SB 7 added TEC 21.006(b-2), expanding the applicability of the law to the campus level in two instances.

As of September 1, 2017, principals are now required to notify the superintendent (not SBEC) no later than the seventh business day after the date the principal obtains information about the criminal record of an educator employed by or seeking employment by the district by a means other than the criminal history clearinghouse established under Section 411.0845 Government Code.

Additionally, principals are now required to notify the superintendent (not SBEC) no later than the seventh business day after the date of an educator’s termination or resignation following an alleged incident of misconduct that is described in TEC 21.006(b)(1).  This list (which should already be familiar to superintendents) includes:

  • abuse or another unlawful act with a student or minor;
  • a romantic relationship with or solicitation of or engaging in sexual contact with a student or minor;
  • possession, transfer, sale, or distribution of a controlled substance, as defined by Chapter 481, Health and Safety Code, or by 21 U.S.C. Section 801 et seq.;
  • the illegal transfer, appropriation, or expending of funds or other property of the school district;
  • an attempt by fraudulent or unauthorized means to obtain or alter a professional certificate or license for the purpose of promotion or additional compensation;
  • a criminal offense or any part of a criminal offense on school property or at a school-sponsored event; or
  • conduct that violates the assessment instrument security procedures established under Texas Education Code Section 39.0301.

As written, the new law does not provide any exceptions for circumstances in which the superintendent is already aware of the information that the principal is required to report.  Regardless of whether this was intentional or the result of a legislative oversight, at this time we strongly encourage principals to err on the side of caution and file a report even when doing so may appear redundant.

Superintendent to SBEC

Under the revised law, superintendents must still report to SBEC not later than seven business days after learning about an educator’s termination or resignation following an alleged incident of misconduct described by TEC 21.006(b) or learning about an educator’s criminal record.  However, SB 7 amended TEC 21.006(c) to include a third reporting trigger.  Consequently, superintendents must also make a SBEC report not later than seven business days after receiving a report from a principal, as described above.  Again, there does not appear to be any exceptions for incidents in which the superintendent already knew (or already reported on) the information conveyed by the principal’s report.

Superintendents should also be aware of another seemingly minor tweak made by SB 7 that could have major implications. Prior to September 1, 2017, TEC 21.006(b)(2) required notification if an educator was terminated or resigned based on evidence that the educator engaged in misconduct.  SB7 broadened this provision to now require notification if an educator is terminated or resigned and there is evidence that the educator engaged in the described misconduct.  In other words, the actual basis of the employment action is no longer determinative as to whether the report must be filed.

District to Parent or Guardian

Senate Bill 7 also added Section 21.0061, which requires a district to notify the parent or guardian of a student with whom an educator allegedly engaged in abuse or an inappropriate relationship as soon as feasible after the district becomes aware the alleged misconduct may have occurred.  Under the new law, the notice must inform the parent or guardian 1) that the alleged misconduct occurred, 2) whether the educator resigned or was terminated in light of an investigation, and 3) whether a report was submitted to SBEC concerning the alleged misconducted.

All District Employees

Finally, employees should be reminded that these reporting requirements are in addition to, and do not replace, their existing legal obligation to report suspected abuse or neglect to law enforcement or Child Protective Services within 48 hours.

It is critical that District personnel understand and comply with these mandates. While current law already allows SBEC to impose sanctions on superintendents for failing to provide required notice, SB 7 extends the allowable sanctions to principals who fail to provide notice to the superintendent.  An administrative penalty of between $500 and $10,000 is added for superintendents or principals who fail to provide timely notice.  Additionally, failure to provide timely notice with an intent to conceal an educator’s criminal record or alleged incident of misconduct is a state jail felony.  If you have any questions about these new and revised requirements, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.

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.

The Truth About Grievances

by Rhonda Crass

Texas law prohibits collective bargaining and strikes by public employees, but it preserves the right to redress of grievances. Tex. Gov’t Code Ann. §617.005 provides: “This chapter does not impair the right of public employees to present grievances concerning their wages, hours of employment, or conditions of work either individually or through a representative that does not claim the right to strike.”  Further, Tex. Gov’t Code § 617.005 has been construed broadly to include evaluations, salary disputes, grading policies, sick leave, and “any other matter which is appropriate for communications from employees to employer concerning an aspect of their relationship.”  A school district must provide parents, students, employees, and the general community the opportunity to have their complaints and concerns heard by those in positions of authority.  Administrators and school boards are those “invested with the powers of government” in a school district, and they are the persons to whom citizens must present grievances.

School districts in Texas that use the TASB Policy service have grievance policies in accordance with state law under the legal policies and have adopted local guidelines for grievances in their local polices.  The three types of grievances are employee grievances, student grievances and community grievances. Policy DGBA (Legal and Local) addresses employee grievances, while Policy FNG (Legal and Local) addresses student grievances.  Community Grievances guidelines are found in Policy GF (Legal and Local).  These local policies normally provide three levels at which the complaint should be heard.  In large urban districts, some have four levels for grievances.

While the terms “complaint” and “grievance” are used interchangeably, basically, anything that has to do with the school district—from the reading materials in the library to the color of paint in the gym—may be the subject of a grievance.  Grievances tend to be an inherently adversarial action because the grievant is challenging a decision made by an administrator, supervisor or your local school board. However, the importance of a grievance is that if a decision has been made that highlights an ineffective policy, bad local practice, or poor decision from a supervisor, the best practice is to revise the policy and not carve out exceptions to the rule.

Districts also hold a public forum at the beginning of each board meeting.  Public forum is not the place for individuals to air grievances.  Board policy states that the presiding officer or designee shall determine whether a person addressing the Board has attempted to solve a matter administratively through resolution channels established by policy. If not, the person shall be referred to the appropriate individual to seek resolution.  Individuals should not be allowed to seek an audience with the Board in closed session unless the grievance policy is followed.  Furthermore, levels I or II should not be waived to expedite a hearing before the board unless the board is the lowest level at which the requested relief may be granted.  Because there are strict guidelines regarding the time frame for bringing grievances, individuals will often attempt to use the public forum avenue to bring their concerns to the board when the grievant has failed to meet the deadlines for bringing a grievance.

As a rule, board members do not necessarily enjoy hearing level III grievances as they are elected officials and generally do not like having to say no to constituents.  Also, grievants are often their friends or neighbors which makes these decisions especially difficult. For that reason, the Board encourages students and parents to discuss their concerns and complaints through informal conferences with the appropriate teacher, principal, or other campus administrator.  Even after initiating the formal complaint process, students and parents are encouraged to seek informal resolution of their concerns.

As a final reminder, it is important to check your local policy to ensure that the level I, II and III grievance forms are in your board policies DGBA, FNG and GF as an exhibit to the local policies.  Many school district administrators have access to them, but it is important that the employees, students, parents, community members and key stakeholders have access as well.  In reviewing your level I, II and III grievance policies, it is important to include a place on the form for not only the grievant’s physical address, but email and phone contact information as well.

For more information regarding grievances, please contact Leasor Crass.  We also provide a training for administrators, supervisors and central office personnel on best practices for conducting grievance hearings.

Preparing to Walk

by Bobby Padgett

As we approach the coming graduation season, we offer this Legal Blast to remind districts that students do not possess a fundamental constitutional right to participate in graduation ceremonies.  While such claims are rare, when they do arise they can cause significant difficulties for a school district because resolving the issue takes a concerted and time-consuming effort due to the timing of graduation ceremonies.

Most often, these claims arise either because a student violates the student code of conduct through their behavior at pre-graduation ceremonies, or they fail to complete all state-mandated requirements to graduate.  With either case, the central inquiry must revolve around the undeniable fact that graduation ceremonies are extra-curricular activities and, as the Texas Supreme Court has repeatedly stated, students do not possess a fundamental right to participate in extra-curricular activities.

This premise that students who do not complete all mandated requirements to graduate do not have a fundamental right to participate in graduation ceremonies was first articulated by the Texas Supreme Court in Spring Branch I.S.D. v. Stamos, 695 S.W. 2d 556 (Tex. 1985), and affirmed in NCAA v. Yeo, 171 S.W.3d 863 (Tex. 2005), where the Court stated:

 “Construing the Texas Constitution’s guarantee of due course of law, we held twenty years ago in Spring Branch I.S.D. v. Stamos, like ‘the overwhelming majority of jurisdictions’ construing other constitutional guarantees of due process, that ‘students do not possess a constitutionally protected interest in their participation in extracurricular activities.’ We have endorsed the rule in Stamos twice since. [The student] nevertheless contends that because of her unique situation as “the most decorated athlete in the history of the Republic of Singapore”, to disqualify her from participating in an intercollegiate swimming competition would deprive her of protected property and liberty interests in her reputation and existing and future financial opportunities in violation of the Texas Constitution. The lower courts agreed, distinguishing this case from Stamos. We conclude that the rule in Stamos applies and therefore reverse the judgment of the court of appeals and render judgment that [the student] take nothing.”

While the range of circumstances can vary widely, a school district can successfully resist a student’s claim that they have a right to participate in graduation ceremonies, so long as the school district’s actions are taken in accordance with school board and school district policies.

Leasor Crass, P.C. will continue to monitor these issues and provide guidance as new information becomes available.  In the meantime, please do not hesitate to contact our office should you have questions or concerns regarding a student’s claim that they have a right to participate in extra-curricular activities, including graduation ceremonies, and the implications it may have for your district.

Exhausting Your Remedies is Exhausting!

by Mike Leasor

In Fry v. Napoleon Cmty. Sch., No. 15-497 (U.S. Feb. 22, 2017), the U.S. Supreme Court, in an 8-0 ruling, held that the exhaustion of the IDEA’s administrative remedies is unnecessary where the gravamen of the plaintiff’s lawsuit is something other than the denial of the IDEA’s core guarantee of FAPE.

E.F. suffers from cerebral palsy and was prescribed a service dog (Wonder) to assist her with everyday tasks. Her school, which provided her with a human aide as part of her Individualized Education Program (IEP) under the IDEA, refused to permit her to bring her service dog to school.

The Frys then began homeschooling E.F. and subsequently filed a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR) under the ADA and §504 of the Rehabilitation Act. Two years later, in May 2012, OCR found that the school’s refusal to permit Wonder to attend school with E.F. was a violation of the ADA. At that time, without accepting the factual or legal conclusions of OCR, the school agreed to permit E.F. to attend school with Wonder starting in the fall 2012.  The Frys then filed suit pursuant to Title II of the ADA and §504, seeking damages for the school’s refusal to accommodate Wonder between the fall of 2009 and the spring of 2012.

The Frys alleged the following particular injuries: denial of equal access to school facilities, denial of the use of Wonder as a service dog, interference with E.F.’s ability to form a bond with Wonder, denial of the opportunity to interact with other students at Ezra Eby Elementary School, and psychological harm caused by the defendants’ refusal to accommodate E.F. as a disabled person.

The district court granted the defendants’ motion to dismiss, finding that the IDEA’s exhaustion requirements applied to the Frys’ claims and dismissed the claims. The court noted that although the Frys did not specifically allege any flaws in E.F.’s IEP, if she were permitted to attend school with Wonder, that document would almost certainly have to be modified in order to articulate the policies and practices that would apply to the dog. Therefore, the Frys’ request for permission for E.F. to attend school with Wonder “would be best dealt with through the administrative process,” and exhaustion was required. Because the Frys had not exhausted IDEA administrative remedies, the district court dismissed their suit. The Frys timely appealed.

A U.S. Court of Appeals for the Sixth Circuit panel, in a 2-1 decision, affirmed the lower court’s decision dismissing the §504 and ADA claims. The panel’s majority concluded that the IDEA’s exhaustion requirement applied to the Frys’ claims. It stated that “the nature of the Frys’ claims required them to exhaust IDEA procedures before filing suit under the ADA and the Rehabilitation Act.” Crucial to the majority’s conclusion that exhaustion of administrative remedies was required, was its determination “in effect that E.F.’s school’s decision regarding whether her service animal would be permitted at school denied her a free appropriate public education.”  Again, the Frys timely appealed.

 The Supreme Court in its decision advanced two positions: (1) To bring a suit under IDEA, the plaintiff must seek relief for the denial of FAPE because that is the only relief available under IDEA; and (2) “[I]n determining whether a suit indeed ‘seeks’ relief for such a denial, a court should look to the substance, or gravamen, of the plaintiff’s complaint.”

According to the opinion, a determination of whether the exhaustion requirement applies must go beyond the surface of the complaint to examine the substance. The Court pointed to two “clues” to discovering whether the gravamen of a complaint concerns denial of FAPE or, instead, focuses on disability-based discrimination addressable under Title II of the ADA or §504:  First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor— have pressed essentially the same grievance?

The Court concluded that if the answer to both is yes, then it is unlikely that the complaint concerns FAPE. However, if the answer to both is no, it is probable that the complaint does concern FAPE.

The Court stated further that another sign that the gravamen of a complaint involves the denial of FAPE is when the history of the proceedings reveal that the “plaintiff … previously invoked the IDEA’s formal procedures to handle the dispute—thus starting to exhaust the Act’s remedies before switching midstream.” She noted that “prior pursuit of the IDEA’s administrative remedies will often provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.”

Turning to the Frys’ complaint, the Court pointed out that it might not require exhaustion, but that there was important information missing that required remanding the issue to the Sixth Circuit. It pointed out that the complaint contains no allegation about the denial of a FAPE or about any deficiency in E. F.’s IEP. The Court also noted that the complaint “does not accuse the school even in general terms of refusing to provide the educational instruction and services that E. F. needs.”  It concluded that nothing in the nature of the Frys’ suit suggests any implicit focus on the adequacy of E. F.’s education. It conjectured that “the Frys could have filed essentially the same complaint if a public library or theater had refused admittance to Wonder.”  Thus, the Supreme Court determined that administrative remedies did not need to be exhausted based on the information at hand, but then remanded the case back to the Circuit Court to determine if the Frys had ever pursued administrative remedies in the first place.

Although confusing, this case is instructive as it gives school districts guidance as to when a “failure to exhaust administrative remedies” argument might be a waste of energy and resources.  Unfortunately, the decision could also be read as providing a roadmap on how to package a claim to avoid an otherwise suitable administrative remedy.  This could have the effect of dramatically increasing the number of cases that end up being litigated in federal courts, as opposed to the (relatively) more efficient due process hearings system.  If you or your staff have additional questions on this issue, or just require further information, the attorneys at Leasor Crass stand ready to assist.

U.S. Supreme Court Rejects “More than De Minimis” Standard

by Dean Micknal

The U.S. Supreme Court issued an opinion today that expressly rejects “merely more than de minimis” as the standard for measuring whether an IEP is reasonably calculated to provide FAPE under the IDEA.  Instead, the Court has held that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

In Endrew F. v. Douglas County School District, the Court overturned the 10th Circuit’s interpretations of IDEA and the Supreme Court’s previous ruling in Board of Education of Hendrick Hudson School District, Westchester City v. Rowley (“Rowley”) as only requiring an IEP to be reasonably calculated to enable a student to make some progress, as long as the progress is more than de minimis.  The leading case in the 5th Circuit, Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. applied a similar interpretation, explaining that the educational benefit to which the [IDEA] refers and to which an IEP must be geared cannot be a mere modicum or de minimis; rather, an IEP must be “likely to produce progress, not regression or trivial educational advancement.”

While the opinion makes it clear that the “more than de minimis” standard is unacceptable, the new standard is anything but definite.  This should not be viewed as an oversight, though.  In fact, the Court expressly refused to establish a bright-line rule on what “appropriate” progress means, explaining that “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”

The frustrating reality of this ruling is that it leaves districts (and their legal counsel) in the position of knowing what FAPE isn’t, but not knowing what FAPE is.  That determination is going to have to be developed through litigation, a fact that the Court seemingly acknowledged when it cautioned future courts that “[t]his absence of a bright-line rule” should not be mistaken as “an invitation…to substitute their own notions of sound educational policy for those of the school authorities which they review.”

This affirmation that the legal presumption of appropriateness is still standing is one of the two areas in which districts might find some measured solace.  The second is that the Court flatly declined to adopt the standard asserted by the Petitioners that IDEA requires “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.”

So what should districts do in response to the new ruling?  First, take a deep breath. The “more than de minimis” standard may have been the law, but in reality the overwhelming majority of districts have always committed to providing much more than the bare minimum to their special education scholars.  Next, recommit to emphasizing the importance of ensuring that an IEP is truly individualized and based on a student’s Present Level of Academic Achievement and Functional Performance (PLAAFP).  The fact that the new standard is directly tied to “the unique circumstances of the child” means that a well written PLAAFP statement is more crucial now than ever.

Finally, acknowledge that the ruling raises the bar, but stops well short of requiring the district to issue a blank check.  IEP development is a collaborative process and sometimes disagreement is inevitable. The IDEA provides parents with the right to file for a due process hearing in these instances.  When that happens, remember that the Court chose to close this decision with the following message:

The nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue.  By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement.  A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.

If you should have any questions or concerns about what the new decision means for your district, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.

Virginia Transgender Case Marches On

by Tommy Fisher

On March 28, 2017, the United States Supreme Court will hear arguments in Gloucester County School Board v. G.G., more commonly referred to as the transgender restrooms case.  The primary issue in the case, whether public schools can be required to let transgender students use bathrooms that align with their gender identity, is one of the highest profile cases likely to be heard by a Supreme Court that has only eight sitting members since the death of Justice Antonin Scalia in February 2016.  How the Gloucester case is deciding could have a far reaching impact on public schools across the United States and merits watching closely by districts and their boards.

G.G. is a 17 year old student at Gloucester High.  G.G. was born female but identifies as a male.  He was allowed to use the boys’ restroom at his school for several weeks in 2014.  After some parents complained, the school board adopted a policy requiring students to use either the restroom that corresponds with their biological gender or a private, single-stall restroom.  G.G. sued the board, alleging that its policy is discriminatory and violates his civil rights.  The 4th Circuit Court of Appeals agreed with G.G. and ruled the case could go forward.  The appeals court deferred to the position of the Obama administration that Title IX bans sex discrimination in public school, and thus protects the rights of transgender students to use the bathroom that aligns with their gender identity. Shortly after the 4th Circuit’s decision, the U.S. Department of Education issued guidance to schools consistent with the decision.  The Supreme Court issued an order that stays the decision of the 4th Circuit.  As a result, G.G. will not be allowed to use the boys’ bathroom while the decision by the Supreme Court is pending.

Further compounding the transgender bathroom issue is a case being appealed to the 5th Circuit Court of Appeals, State of Texas, et al., v. United States of America, et al.  The district court Judge in the State of Texas case issued a nationwide injunction banning enforcement of an Education Department policy requiring schools to allow transgender students to use bathrooms and locker rooms corresponding to their gender identity.  The State of Texas case is being appealed to the U.S. 5th Circuit Court of Appeals.

So where does all of this leave the transgender bathroom in schools issue?  For now, the nationwide injunction bans the Department of Education from enforcing its policy.  If the 5th Circuit Court of Appeals upholds the injunction, it will remain in place nationwide.  If the Supreme Court deadlocks 4-4 in the G.G. case, which is a possibility given the current makeup of the eight member Court, the decision of a Texas District Court Judge could remain in place as long as the Supreme Court is unable resolve the issue.  Whatever the outcome, the issue certainly should be followed closely by districts as the regulatory and legal landscape on this issue evolves.

If you or your staff require further information or if an issue arises involving a transgender student, the attorneys at Leasor Crass stand ready to assist.

Proper Investigation Matters: Student’s Sexual Abuse Claims Fail

by Bobby Padgett

by Bobby Padgett

A federal district court dismissed all claims filed by McAllen ISD parents alleging that a teacher engaged in sexual contact with their child during a school trip and on the high school campus. In Moreno v. McAllen Independent School District, the parents asserted causes of action under Section 1983, Section 1985, and Title IX, in addition to state law claims of assault and battery, negligence, negligence per se, and intentional infliction of emotional distress.  The district court dismissed the state law claims for failure to state a claim, and granted summary judgment on the federal claims.

Before moving to a discussion regarding the District’s investigation, a brief overview of each claim is as follows:

  • Section 1983 Claims: The Court found the Section 1983 claim was meritless because there was no showing that a state action had deprived the child of federal rights.
  • Fourteenth Amendment Claims: The Court found meritless the claim that the child was to be free from state-caused damage to his bodily integrity noting there was no evidence showing the presence or absence of any District training programs and how they were defective.  Furthermore, there was no evidence that the Board knew of any violations, or received complaints about a District employee and deliberately chose to do nothing.
  • Section 1985 Claim: The Court found the Section 1985 claim for conspiracy meritless based on a determination that a school board and its employees constitute a single entity, and as such cannot be co-conspirators.
  • Title IX Claim: While the court noted that sexual abuse of a student by a teacher of the same sex constituted discrimination under Title IX, the claimant failed to show that a school employee with supervisory authority over the accused employee had actual notice of the abuse.

Regarding the District’s investigation into this matter, the Court found that one teacher in the District had complained about the accused employee’s behavior with male students to a principal, but that the conduct described in the complaints was susceptible to multiple interpretations and would not have given the principal actual notice that the accused employee was sexually harassing or abusing students.

Furthermore, and most important, the Court could not find that the District was deliberately indifferent to the abuse. After the District received the allegations, it swiftly initiated an investigation, notified the McAllen Police Department and Child Protective Services, and placed the accused employee on paid leave.  In sum, because the family had not shown that any supervisor in the District had actual knowledge that the accused employee posed a substantial risk of abusing students and responded with deliberate indifference, the Court granted the District summary judgment and dismissed the claims.

The lesson here is one which should be carefully heeded.  If, at any time, a student makes a claim of any type of harassment against a district employee, that district should immediately begin its investigation to ensure it either proves the allegation false or roots out and remedies the discrimination.

Leasor Crass, P.C. will continue to monitor these issues and provide guidance as new information becomes available.  In the meantime, please do not hesitate to contact our office should you have questions or concerns regarding existing discrimination law and the implications it may have for your district.

Good News. Bad News. AG Releases Opinion Regarding Video Surveillance

by Dean Micknal

by Dean Micknal

The Attorney General has finally responded to TEA’s March 11, 2016 request for an expedited opinion regarding the construction of Texas Education Code section 29.022.  Unfortunately, it is not the response most Districts (or TEA) were wanting.  A copy of the opinion is available here.

Back in March, Commissioner Morath asked the AG four questions:

  1. Whether TEC 29.022(a) could be interpreted to only require video surveillance in one self-contained instructional setting;
  2. Whether TEC 29.022(a) could be interpreted to allow a requestor to limit a request for video surveillance to one or more specific instructional settings;
  3. Whether the term “staff member” as used in TEC 29.022(a) could be construed to mean only a campus employee who is assigned to a self-contained instructional setting subject to surveillance and certain campus supervisors; and
  4. Whether TEC 29.022(b) allows a district to discontinue video surveillance if the circumstances surrounding the request have changed substantially.

The Attorney General emphatically disagreed with the suggested interpretations…stating that “[t]he plain language of the statute does not allow for the reasonable limitation that you suggest, and this office cannot rewrite the statute.”

What does this mean for districts?  Prior to yesterday’s Opinion, there was a sliver of hope that the AG would interpret the statute so as to allow TEA to revise the rules it adopted last month to limit the scope of a request and/or allow for surveillance to be discontinued.  This Opinion would seem to firmly shut that door.  Consequently, with respect to questions 1, 2, and 4, the current Rules will probably remain in effect. Specifically:

  • TAC 103.1301(a) requires cameras to be placed, operated and maintained in self-contained classrooms or other special education settings in accordance with TEC 29.022, which has been interpreted to mean all qualifying self-contained classrooms and other special education settings;
  • TAC 103.1301 does not include any provision allowing a Requestor to limit a request to one or more specific settings; and
  • TAC 103.1301(g)(6) requires campuses to “continue to operate and maintain any video camera…for as long as the classroom or setting continues to satisfy the requirements in TEC §29.022(a).”

However, TEA may end up having to change the definition of “staff member” set out in TAC 103.1301(b)(2).  In the AG’s opinion, TEA “exceeded its rulemaking authority by adopting a definition more restrictive than the plain language of the statute.”  In other words, the AG believes that if the Rules were challenged, a court would likely conclude that the statute allows any staff member to request video surveillance.  That being said, the current, narrower definition of “staff member” remains in force until TAC 103.1301(b)(2) is revised or overturned in court.

Ultimately, this means that any hope for “reasonable limitations” to TEC 29.022 will most likely require action on the part of the Legislature.  As many districts have warned, and the AG explicitly acknowledged, as currently written, the statute “could create significant costs for school districts.”  We now know that relief from those costs won’t be coming from Ken Paxton’s office.  At best, the AG’s explicit admonishment of the authors of SB 507 for believing that “TEA can clarify these concerns through rulemaking” and pointed reference to the Texas Supreme Court’s holding that “reasonableness is not the standard for eschewing plain statutory language” will be received as a call to legislative action.

Leasor Crass, P.C. will continue to monitor this issue and provide guidance as new information becomes available.  In the meantime, please do not hesitate to contact our office should you have questions or concerns regarding the existing law and the implications it may have for your district.

 

Court Tells OCR to Hold It: Legal Update on Transgender Restroom Access

by Christie Hobbs

by Christie Hobbs

On August 21, 2016, the federal court in Wichita Falls issued a nationwide injunction in a lawsuit over federal guidance on transgender student rights in schools.  In the lawsuit, Harrold ISD, the State of Texas, and eight other states sued the federal government to dispute guidance that tells schools to allow transgender students to use restrooms, locker rooms, housing, and overnight accommodations consistent with their gender identity.  The guidance and lawsuit were summarized in a previous post here.

The preliminary injunction prevents the United States Department of Education, the United States Department of Justice, and other federal agencies from:

  • enforcing the guidance against the Plaintiffs and other public schools;
  • initiating or continuing any investigation on the interpretation of sex and gender identity set out in the guidance; and
  • using the guidance in litigation or asserting that the guidance carries weight in any litigation filed after August 21.

The injunction extends nationwide until the court rules on the lawsuit or the Fifth Circuit Court of Appeals issues “further direction.”  Notably, the injunction doesn’t require schools to take any specific action or refrain from taking action.  You can read the injunction order here.

For now, OCR’s guidance is on hold.  The injunction will likely be challenged, and our firm will continue to update our clients as this develops.  In the meantime, schools should work closely with legal counsel as questions arise over these issues.