Blog | Leasor Crass, P.C

June 3, 2021 By LeasorCrass

Retaliation: Who Did What and When?

Shortly after sharing concerns about the educational placement of a student with a disability, a Michigan parent received a truancy letter. The letter, sent by the district’s attendance agent, explained the legal repercussions of the student’s unexcused absences and that the parent could be prosecuted under state law. The attendance agent, unaware of the prior parent complaints, took action in accordance with district polices and practices, which required the district to initiate the truancy process after 12 unexcused absences.

In response to the letter, the parent filed a complaint with OCR alleging the district’s action was retaliation for her complaints about the student’s placement. After investigating the complaint, OCR found the letter was not reprisal for the parent’s placement complaints. In making this determination, OCR concluded that the district had “articulated a legitimate reason for its action,” and that the attendance agent responsible for the truancy letter was not aware of placement concerns and based the finding on objective evidence from the student’s attendance record.

While the district overcame the complaint in this case, parental claims of retaliatory conduct similar to this incident are increasing. Section 504 prohibits districts from discriminating against qualified students with disabilities. Public schools are required to provide such students with a free, appropriate education at public expense (FAPE). 34 C.F.R. § 104.33(a). Additionally, Section 504 incorporates the anti-retaliation provision of Title VI of the Civil Rights Act of 1964, which “prohibits recipients from intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege…or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part.” 34 C.F.R. §104.61; 34 C.F.R. §100.7(e).

For an allegation of retaliation to be sustained, OCR must determine that:

An individual experienced an adverse action caused by the recipient;
The recipient knew that the individual engaged in a protected activity or believed the individual might engage in a protected activity in the future; and
There is some evidence of a causal connection between the adverse action and the protected activity.

All three elements must exist for OCR to substantiate a prima facie case of retaliation. If any one of the elements cannot be established, then OCR finds insufficient evidence of a violation. If, however, all the elements are established, an inference of unlawful retaliation is raised, and OCR proceeds to the next stage of the analysis. To ascertain whether this inference might be rebutted, OCR will then determine whether the district can identify a non-retaliatory reason for its actions. If such a reason is identified, OCR’s investigation proceeds to the third stage. At the third stage, OCR examines the evidence to resolve what the reason was (or reasons were) for the intimidation, threat, coercion, or discrimination. U.S. Dep’t of Educ., Office for Civil Rights, Case Processing Manual, (Aug. 2020).

Actions that could be seen as seeking to deter parent advocacy include, but are not limited to, truancy referrals, civil restraining orders, and abuse and neglect claims. While districts should not shy away from taking such actions, and in some cases are legally mandated to do so, it is essential that these measures be taken only for nonretaliatory and legitimate purposes.

It is equally important for districts to understand and recognize that even legitimate actions can provide the basis for parents to exercise their procedural safeguards. When this happens, it can be difficult to avoid the trap of taking it personally…which can result in a heightened perception of retaliation. Best practice is to take a deep breath, compartmentalize the complaint/investigation, and trust the process. If your district finds itself spinning into the retaliation cycle, the school law attorneys at Leasor Crass, P.C. have the experience to help.

March 29, 2021 By LeasorCrass

Mishandling Reports of Sexual Harassment Could Cost Your District Millions

Late last week, it was announced that USC has agreed to pay $852 million to settle claims made by 710 women alleging sexual assault and sexual harassment by a former USC physician. This is in addition to a $200 million settlement USC previously agreed to pay in a federal class action arising from similar allegations against the same employee.

This is the world of Title IX, and this is what could potentially happen when school districts and universities mishandle reports of sexual harassment. Failure to respond appropriately to these types of allegations could result in sanctions from the Department of Education or liability for money damages in court. (USC took a hit in both places.)

USC’s liability is rooted in claims that the school was deliberately indifferent to sexual harassment and sexual assault complaints about its employee. School districts are not immune from these kinds of suits.

The USC settlement is a huge number, but that is only due to the large number of plaintiffs involved. This latest settlement works out to about $1.2 million per plaintiff. That amount is not beyond the realm of possibilities in the K-12 context. There have even been some jury verdicts against school districts that are significantly higher.

It is also critical to remember that the Department of Education issued regulations last summer concerning how districts must respond to alleged sexual harassment. The regulations are quite extensive and impose a multitude of requirements on districts, including a very specific and detailed grievance process that must be used to handle formal complaints of sexual harassment.

If, and when, your district is faced with a report of Title IX sexual harassment, it is worth a call to your lawyers. We are here to coach you through the regulations to help make sure your district is in compliance. If you haven’t done so yet, we can also help with mandatory policy updates, notices, and training for your personnel to make sure you’re well-positioned before your next complaint comes in.

Above all else, remember this: Do not ignore allegations of sexual harassment. Deal with them promptly and properly. Mishandling these allegations could cost you millions, not to mention the trust of your community.

March 4, 2021 By LeasorCrass

Party On?! Chapter 21 and the First Amendment

Believe it or not, contract season is right around the corner. And, as you are no doubt aware, Texas Governor Abbott recently issued Executive Order GA-34. The Order, which goes into effect on March 10, 2021, removes the state-wide operating limits and mask mandate that have been (depending on your perspective) keeping the spread of COVID in check and/or trampling personal liberties since last July. The alignment with upcoming St. Patrick’s Day and Spring Break is almost astronomical in nature. What could possibly go wrong?

While we sincerely hope public school district employees make good choices over the next several months, we thought this might be a good time to address some common questions about employees behaving badly.

Can public school employees be disciplined for off-campus behavior?

Yes. While public school employees do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”, courts have long recognized that the First Amendment protections enjoyed by a public employee must be balanced with the public employer’s interest in an efficient, disruptive-free workplace. While an entire semester could be spent on the nuances of this area of law, a very simplified distillation is as follows:

Is the employee speaking/acting pursuant to their official duties?
1. If so, the speech is not protected.
2. If not, move to the second step.
Is the employee speaking as a citizen on a matter of public importance?
1. If not, the speech is not protected.
2. If so, move to the third step.
Does the employee’s interest in free speech outweigh the school’s interest in maintaining an efficient, disruptive-free workplace?
1. If so, the speech is protected.
2. If not, the employee may be disciplined.

By way of example, imagine that an employee travels to South Padre Island for Spring Break and ends up on a local news broadcast. If the resulting video depicts the employee giving her thoughts on the wisdom of the Governor lifting the mask mandate, that speech (pro or con) would likely be protected. However, video of the employee doing a keg stand on the beach while drunkenly singing “Danny Boy” would support disciplinary action.

Termination or nonrenewal? What’s the difference?

If Spring Break shenanigans should result in employment action, it will become important to weigh the options for termination vs nonrenewal. Simply put, termination means ending a contract before the contract expires according to the terms that have been agreed upon. Nonrenewal means refusing to renew a contract for another term. With respect to Chapter 21 Contracts:

Continuing Contracts aren’t subject to renewal because they…um…continue. Consequently, Continuing Contracts must be terminated for good cause.
Term Contracts may be ended during the contract period for good cause. However, by their nature, Term Contracts end after a set amount of time, typically one or two years. State law requires that these contracts be renewed for another term unless the school district takes action by determining that one or more established policy reasons for nonrenewal exist. These reasons are typically set out in District Board Policy DFBB(LOCAL).
By law, a Probationary Contract may not be for a term exceeding one school year. A Probationary Contract may be ended during this contract period for good cause. However, the law also allows a district to terminate the employment of an employee on a probationary contract at the end of this one-year contract period if the Board determines that such termination will serve the best interests of the District.

All three types of Chapter 21 contracts may be terminated for good cause during the contract period (importantly, Term Contracts have a different legal standard for “good cause” than Probationary or Continuing Contracts.) Additionally, all three types of contracts require notice and an opportunity for a hearing before termination can occur. The specific notice and hearing requirements are statutorily defined and must be followed precisely to ensure that the termination is legal.

Term and Probationary Contracts may be nonrenewed at the end of the contract period. Probationary Contracts only require that notice of the Board’s decision to terminate employment be given in accordance with specific statutory requirements.

Term Contracts provide the employee with more due process. The Board must meet specific statutory requirements regarding notice of the decision to propose nonrenewal, an opportunity for a hearing, and then notice of the actual decision to nonrenew. Consequently, any action to nonrenew a Chapter 21 Contract is, at a minimum, a two-step process that requires multiple meetings.

At this time of year, it is typically more financially prudent to initiate nonrenewal proceedings than to engage in termination. This is due in part to the more stringent good cause standard and the requirement that a termination hearing be held before an independent hearing examiner, while a nonrenewal hearing may be conducted by the school board. Of course, nonrenewal may not be an option if the employee is in the midst of a multi-year contract.

Our sincerest hope is that everyone will continue to behave in a safe and responsible manner. However, should the confluence of personal freedom, green beer, and Spring Break result in poor choices, districts will need to be prepared to act swiftly to address personnel issues in accordance with the legal protections afforded by Chapter 21. The education lawyers at Leasor Crass, P.C. are ready to help ensure that these legal mandates are followed.

January 12, 2021 By LeasorCrass

Student Trustees Would Be Mandatory Under Senate Bill 272

Here at Leasor Crass, we are keeping a close eye on the bills being filed for the upcoming Texas legislative session which will either directly affect or have some impact on our clients.

Filed on December 30, 2020, Senate Bill 272 really caught our attention. It requires a school district board of trustees to create a nonvoting student trustee position on the board. The text of SB 272 can be found here.

SB 272 seeks to repeal Texas Education Code section 11.0511 which gives the board of trustees of a district with a school operating under a campus turnaround plan the option to create a nonvoting student trustee position. TEC 11.0511 states that such a student trustee may not participate in board meeting closed sessions when issues related to personnel matters are considered. Further, if a board chooses to create this student trustee position, the board must adopt a policy regarding how the student trustee will participate in board deliberations and ensuring that the student trustee’s access to information, documents and records is consistent with the Family Educational Rights and Privacy Act (“FERPA”).

Unlike TEC 11.0511, SB 272 requires all school districts to have a nonvoting student trustee. Further, SB 272 does not provide any mechanism for addressing how the student trustee will participate in deliberations, what kind of access the student trustee will have to confidential student or personnel information, or contain a prohibition for participating in closed session when personnel matters are involved.

Under SB 272, the Commissioner must develop an application for the position of student trustee. Each year, starting with the 2021-2022 school year, high school principals must solicit applicants for the position using the Commissioner’s form application and then select three applicants to recommend to the board of trustees. The board president will then select two or more applicants from those recommended by the high school principal(s). The board, by majority vote, appoints one of the finalists chosen by the board president to serve a one-year term. During the term, the student trustee must remain enrolled in school and maintain at least a 2.5 GPA. SB 272 states that the student trustee is not a member of the board, but “has the same powers and duties as a member of the board, including the right to attend and participate in meetings” with the exception of having the right to vote and to be counted when determining whether a quorum exists for a board meeting. The student trustee is also “entitled to reimbursement for actual expenses incurred by the student in attending meetings of the board,” subject to the board president’s approval.

Students serving in an advisory capacity to school boards is relatively common now and being part of the governance process can provide invaluable civics lessons to students. In a few rare cases, students have even served as fully participating school board members who vote on nearly all board matters. The two links below share additional information on this topic.

https://www.edweek.org/leadership/students-on-school-boards-balancing-representation-and-fairness/2019/06

https://www.edweek.org/leadership/few-student-board-members-can-vote-should-that-change/2019/06

However, in the rare cases found in the links, there was no legislative mandate to create these student trustee positions.

We will be watching SB 272 to see whether it makes progress during the upcoming legislative session. If you have questions about SB 272 or any other proposed legislation and how it might affect your school district, please do not hesitate to contact any of the Leasor Crass attorneys.

December 4, 2020 By LeasorCrass

To Lease or Not to Lease, That is the Question

On October 20, 2020 Attorney General Ken Paxton opined on the ability of school districts to enter into long-term leases with private entities. More specifically, the Tarrant County Criminal District Attorney asked Attorney General Paxton whether an independent school district may enter into a long-term ground lease with a private entity that intends to develop the district’s surplus property for non-educational purposes that are expected to yield financial benefits to the district exceeding the current value of a sale of the property. Tex. Att’y Gen. Op. No. KP-0338 (2020).

The opinion reiterates that provisions in Chapter 11 of the Texas Education Code authorize a school district’s board of trustees to dispose of surplus property and sell property held in trust for district use. However, there is no statutory provision expressly authorizing a school board to lease district property to another entity.

Case law helped fill in the statutory gap in Royse Indep. Sch. Dist. v. Reinhardt and River Rd. Neighborhood Ass’n v. S. Tex. Sports. The Royse court determined that a school board had implied authority to lease district property to another entity. Ultimately, the court concluded the specific use of the property was “not so inconsistent with the purposes to which the property has been dedicated or set apart as renders the contract . . . illegal or unauthorized.” Later attorney general opinions relying on the Royse ruling have recognized that school boards have implied authority to permit private entities to lease school property so long as the lease does not interfere with the property’s school purpose.

In contrast, the court in River Rd. held that a district’s board of trustees lacks authority to enter into a long-term lease which relinquishes the board’s authority to control the property’s use. As a result, a board of trustees may lease a district’s real property, but may not divest itself of the right to manage and control the property and a lessee’s use must not interfere with the property’s use for district purposes.

Tex. Att’y Gen. Op. No. GA-0321 (2005) recognized a relevant factor in the determination of whether a long-term lease would interfere with the property’s use for district purposes is the determination that the land at issue is not used by the school district. Further, determining that land is no longer necessary for a school district’s operation is a relevant factor in whether a lease divests a school board of its right to manage and control the property.

Attorney General Paxton ultimately concluded whether a specific lease satisfies the requirements of law is a question of fact and contract interpretation outside the purview of an attorney general opinion. However, he cautioned school districts to consider the Texas Constitution’s prohibition on gifts of public funds and whether such a lease would satisfy the three-part test iterated in Texas Municipal League Intergovernmental Risk Pool v. Texas Workers’ Compensation Commission. To do so, a district must ask: (1) is the expenditure’s, in this case a lease to use the district’s property, predominant purpose to accomplish a public purpose, rather than benefit private parties?; (2) will the district maintain sufficient control over the lease and property to ensure the public purpose is accomplished?; and (3) will the district receive a return benefit?

Attorney General Paxton clarifies the fact that the property is no longer necessary for the school district’s operation does not negate the Texas Constitution’s prohibition on gifts of public funds. However, the property’s necessity, or lack thereof, any reversion back to the district, and the long-term financial benefit are factors to be considered in the district’s evaluation.

If you would like to read the full opinion, click here.

If you have any additional questions about this opinion or any other issue, please do not hesitate to contact the attorneys at Leasor Crass.

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