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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.

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.

Teacher and Administrator Evaluations: How Confidential Are They?

by Tommy Fisher

The Texas Education Code 21.355 is simple and straightforward:

A document evaluating the performance of a teacher or administrator is confidential.

Tex. Ed. Code § 21.355(a).

What exactly is covered by the words “document evaluating the performance” and whether the documents are actually privileged has been left to courts to decide.

There are very few cases that deal with § 21.355.  The two most recent, North East ISD v. Greg Abbott and Fairchild v. Liberty ISD show that the confidentiality of the evaluations may depend on the court from which the subpoena originated.

Abbott v. N. E. Indep. Sch. Dist., 212 S.W.3d 364, (Tex. App. Austin 2006) was filed in the 345th District Court of Travis County.  North East ISD received a request for records regarding a teacher.  It sought guidance from the Attorney General, Greg Abbott. Attorney General Abbott ruled that one document, a memorandum from the school principal memorializing a meeting with the teacher concerning performance issues, was not privileged.  The District filed suit seeking a declaration that the document was confidential and exempt from disclosure.  The District Court granted summary judgment in favor of the District finding that the memorandum was “a document evaluating the performance of a teacher”.  On appeal, the Third Circuit Court of Appeals in Austin found that the memorandum evaluates the teacher because it reflects the principal’s judgment regarding her actions, gives corrective direction and provides for further review.  As a result, the memorandum was confidential under TEC 21.355. Similarly, other evaluative documents will likely be confidential as well.

However, if the reviewing court is a Federal District Court, the result will likely be different.  In Fairchild v. Liberty Indep. Sch. Dist., 466 F. Supp. 2d 817, (E.D. Tex. 2006), affirmed on other grounds, the U.S. Eastern District Court, Beaumont Division, found that the state law privilege set forth in TEC 21.355 does not protect the performance evaluations of a defendant teacher.  Julia Fairchild was a former teacher’s aide who filed an action against the District and the teacher in charge of her classroom, Jessica Lanier, alleging that she was fired in retaliation for complaining about Lanier’s dereliction of duty.  During discovery, Fairchild sought performance evaluations of Lanier.  The district argued that the evaluations were privileged under TEC 21.355.  Following a lengthy analysis of process by which state law privileges are applied by the Federal Court, the Federal District Court found that the evaluations were not privileged and that any privacy concerns can be preserved by entry of an appropriate protective order limiting further disclosure.

What does this mean for a District that receives a PIA request for teacher evaluations?  In Texas State Court and at the Attorney General’s Office, the TEC § 21.355 privilege will be recognized.  However, in Federal Court, there is a substantial risk that the evaluation will be produced.  A District producing such a report should seek to have a protective order entered by the Court that restricts the use and distribution of the report by those receiving it.

If you have questions about the release of evaluative documents, the attorneys at Leasor Crass stand ready to assist.

 

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

Absence Makes the Heart Grow Fonder…of Your Absence

by Melissa Mozingo

The Americans with Disabilities Act (ADA) compels employers to be accommodating and flexible, but the harsh reality is that there are some jobs that a person with certain disabilities simply cannot do.  When an employee suffering from a disability can no longer perform the essential functions of her job with or without a reasonable accommodation, the ADA allows the employer to terminate her.  Although this rule might be more easily applied when dealing with a physical disability that prevents an employee from completing critical tasks, it also holds true for an employee with a mental or emotional disability, particularly one that prevents her from working at all. The Sixth Circuit made this crystal clear in Williams v. AT&T Mobility Services LLC.

The Williams case involved an AT&T customer service representative (CSR) who suffered from depression and anxiety attacks that caused her to frequently miss work.  Because of her excessive absenteeism, AT&T terminated Williams for job abandonment and violating the attendance policy.  Williams sued AT&T under the ADA for failing to provide a reasonable accommodation, failing to engage in the interactive process, and terminating her based on her disability.  The U.S. District Court for the Western District of Tennessee granted summary judgment to AT&T as to all of Williams’s claims.  Williams appealed, arguing that she could have performed her job despite her depression and anxiety attacks if AT&T had given her leave from work for treatment, flexible scheduling, and additional breaks during her shifts.  The Sixth Circuit disagreed.

Regular Attendance Was an Essential Job Function.

Citing EEOC v. Ford Motor Co., the Sixth Circuit first explained that regular attendance qualified as an essential job function, so employees with excessive absences were not qualified individuals under the ADA because they failed to perform that essential function (i.e., regularly attend their jobs).  Considering AT&T’s strict Attendance Guidelines and declarations from two AT&T managers regarding the CSR position, the Sixth Circuit held that regular attendance was an essential function of the CSR position.  The court noted Williams’s poor attendance record, including being absent from work for entire months in two different years, taking a six-month leave and nearly three-month leave, and not getting her unscheduled absences approved for short-term disability leave.  Given this record, the Sixth Circuit held that Williams could not perform the essential function of regularly attending her job and was not qualified to be a CSR without a reasonable accommodation.

Williams Did Not Request Reasonable Accommodations.

Because Williams failed to show how her proposed accommodations would have enabled her to perform the essential functions of a CSR, the Sixth Circuit also found that AT&T did not fail to accommodate her.  Williams admitted that her anxiety attacks were unpredictable, she could not perform her job duties during her attacks, she could not function in a call center environment, and she could not focus due to her mental illness.  Importantly, neither Williams nor her health care providers explained how flexible scheduling and additional breaks would have mitigated these issues and enabled Williams to do her job.  Furthermore, the Sixth Circuit held that requiring AT&T to grant Williams additional leave was an unreasonable accommodation because Williams had a history of taking leaves, her condition never improved during those leaves, and she repeatedly failed to return to work when her health care providers estimated that she would be able to return.

After reiterating that an employer’s failure to engage in the interactive process is only actionable if the employee can demonstrate that she was qualified for the position, the Sixth Circuit stated that it was unnecessary to consider whether AT&T failed to engage in the interactive process because Williams was unqualified for her position with or without a reasonable accommodation.  The court also agreed with the district court that Williams failed to establish a prima facie case of disability discrimination or retaliation and affirmed the district court’s summary judgment ruling in favor of AT&T.

Takeaways.

So, what is the Sixth Circuit telling us about how to deal with a mental disability that prevents an employee from coming to work? First, clearly articulate the essential functions of an employee’s job, preferably in writing (e.g., job description, employee handbook), and be sure to mention attendance is essential.  Second, assess whether the employee is performing the essential functions of her job (including coming to work), being sure to document and promptly inform the employee about deficiencies.  Third, discuss whether there are any reasonable accommodations available that would allow the employee to do her job.  Ask for recommendations from the employee’s health care providers during this interactive process.  If you and the employee (and the employee’s doctor) cannot come up with a reasonable accommodation that does not eliminate an essential job function of the position (i.e., coming to work), and you do not have a vacant position in which you can reasonably accommodate her, you may have to terminate the employee.  Although handling this type of issue may take some time, in this case the Sixth Circuit declared that AT&T did all that the ADA required.  Employers should follow its example.

If you or your staff would like training on this issue, or just require further information, the attorneys at Leasor Crass stand ready to assist.

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.

#FirstAmendment #YouSaidWhat? Free Speech and Matters of Public Concern

by Dean Micknal

I don’t know about you, but lately it feels like some new hot button issue is hitting the airwaves on a daily, if not hourly, basis.  It also appears that many people, including those who have previously abided by the “never discuss religion or politics in public” rule, are feeling compelled to express their opinions on these issues.  The varying degrees of civility being employed, potential depletion of our nation’s hashtag supply, and the fact that some (myself included) find this heightened level of public discourse emotionally draining does not diminish the fundamental importance the right to free speech plays in our society.  Understanding how and when to respond to incidents in which a district employee or student is exercising this right is essential to avoiding a claim that the District has infringed upon the individual’s First Amendment rights.

As an initial matter, it is important to recognize that the U.S. Supreme Court has long held that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  However, these rights are not absolute.  Some categories of speech are simply not protected by the First Amendment.  For example, speech defined by a court as obscene, defamatory, “fighting words”, or “true threats” of violence is not protected and may be prohibited without violating the First Amendment.  That said, defining these categories is not always straightforward.  If you have any doubt as to whether an incident really involves an unprotected category of speech, please be sure to review it with legal counsel before taking action.  This is also a great way to make your school attorney feel uncomfortable at having to recite George Carlin’s “Seven Dirty Words” routine.

What about speech that doesn’t fit into one of the identified categories of non-protected speech? The short answer is “it depends.”  A summary of the longer answer is as follows…

If the speaker is a district employee, the speech would need to be subjected to a legal analysis known as the Garcetti-Pickering Balancing Test.  Entire law review articles have been written on the nuances of this analysis, but the basic structure involves three questions.

1.  In what role is the employee speaking?

a.  If the employee is speaking pursuant to his or her official duties, the speech is not protected and may be restricted.

b.  If the employee is speaking as a private citizen, the speech might be protected.

2.  Is the employee speaking on a matter of public concern?

a.  If “no”, the speech is not protected and may be restricted.

b.  If “yes”, the speech might be protected.

3.  Does the district’s interest “in promoting the efficiency of the public services it performs through its employees” outweigh the employee’s interests in commenting, as a citizen, upon the matter of public concern?

a.  If “no”, the speech is protected.

b.  If “yes”, the speech may be restricted.

If the speaker is a student, the analysis typically follows the jurisprudence developed in one or more of the following lines of cases:

  1. Tinker v. Des Moines ISD—allowing restrictions to speech when school officials can reasonably forecast that the speech would materially and substantially interfere with the work of the school or infringe the rights of others;
  2. Bethel School District v. Fraser—allowing schools to regulate offensively lewd and indecent speech in the school setting;
  3. Hazelwood School District v. Kuhlmeier—allowing restriction of speech that is attributable to a school-sponsored expressive activity that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school; and
  4. Morse v. Frederick—allowing restrictions to speech advocating illegal drug use or otherwise poses grave and unique threats to the physical safety of students.

The polarizing and emotionally charged nature of current events means that there is an increased likelihood that an employee or student may express an opinion that is unpopular or even offensive to some members of the community.  When this occurs, it is essential to avoid knee-jerk reactions based on disapproval with the speaker’s viewpoint.   Any First Amendment claim is likely to be highly fact-dependent and determining the speaker’s status under the law requires careful consideration to identify and then apply the appropriate analysis.  If you have any concerns as to whether an incident involves protected speech, the attorneys at Leasor Crass are ready, willing and able to help.

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.

A President’s Day Reminder: Authorities Still Matter

by Bobby Padgett

A Texas Court of Appeals has found that a former school employee reported suspected law violations to an appropriate law enforcement authority when she reported Penal Code violations to district police officers.  As such, the Court overturned the dismissal of her lawsuit and sent it back to the trial court for appropriate disposition.  This case is important because it delineates the type of authority and sufficiency of reporting necessary for a Whistleblower claim to proceed.

The former employee was the Director of Compliance for a Texas school district.  Her job required her to oversee compliance with UIL rules, identify problems that might affect UIL compliance, and provide training, ongoing support, and communication to district staff concerning compliance and eligibility requirements for all UIL activities.  The employee uncovered what she believed were serious problems related to the residency of student-athletes and potential falsification by coaches of Prior Athletic Participation Forms, which are required to ensure student-athletes that transfer to new high schools actually live within the new school’s attendance zone.  She reported her suspicions of wrongdoing to three departments within the district: the Office of Professional Responsibility; the Internal Audit Department; and the Professional Standards Office (PSO).  All of these departments were responsible for internal, administrative investigations of employee wrongdoing.  Additionally, the employee made reports of wrongdoing to the Chief and Assistant Chief of the district police department.  The PSO investigated the allegations and released a report confirming virtually all of her reports of wrongdoing. The day after the PSO released their report, the district terminated the employee.

While the district argued that the informal report to the district police department was insufficient to substantiate a Whistleblower claim, the court concluded that the employee’s conversations with district police officers sufficiently apprised them of her suspicion that district athletic personnel were tampering with governmental records in violation of the Texas Penal Code.  As the district police department had the authority to investigate such an offense, the court concluded that the employee had sufficiently reported criminal violations within the meaning of the Whistleblower Act and remanded that claim to the trial court.

The lessons here are those which should be carefully heeded.  First, before a district seeks to take employment action against an employee who has made reports of law violations to any district departments or individuals, an analysis should be conducted to find out if these departments or individuals qualify as appropriate law enforcement agencies to sustain a Whistleblower claim.  Second, before taking employment action against a district employee, an analysis should also be conducted to ensure that the employee cannot file a retaliation claim for engaging in a protected activity, such as reporting criminal law violations to appropriate authorities.

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 Whistleblower and/or retaliation issues and the implications they may have for your district.