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HBA Public Education Programs Texas Safe Schools 2020: School Security in a Modern Era An Update on Title IX Recovery for Student Athletes’ Injuries in the Face of Sovereign Immunity Disruption: Social Media’s Negative Impact on Education

Volume 56 – Number 5

March/April 2019

Public Education and the Law

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The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys

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contents March/April 2019

Volume 56 Number 5

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FEATURES

10 HBA Public Education Programs Constitution Day and Law Day Readings: Engaging the Next Generation

By Trey Holm

IDEA Program Helps Fifth-graders Preview the Health and Legal Consequences of Drug Abuse

By Kristen Lee

Promoting the Importance of Jury Service

By Koby Wilbanks

HBA Juvenile Justice Mock Trial Program Brings Reality of Courtroom to 8th Graders

By Tara Shockley

Speakers Bureau: Bringing Tailored Legal Talks Directly to Communities

By Marni Otjen

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Teach Texas: Inspiring a New Generation of Lawyers

By Natasha Breaux

Safe Schools 2020: 20 Texas School Security in a Modern Era

By Miles T. Bradshaw

Update on Title IX 24 AnBy Rebecca Bailey and

Christopher B. Gilbert

for Student Athletes’ 27 Recovery Injuries in the Face of Sovereign Immunity: A Hail Mary?

By Jarvis V. Hollingsworth and Melissa M. Mihalick

Cover: The HBA sponsors annual Law Day Contests in elementary, middle and high schools. Featured here are some of the first place winners in the poster and photography contests. Clockwise from upper left: 3rd-5th Grade – Heba Badat, Kujawa Elementary School, Aldine ISD; K-2nd Grade – Adyasha Pradhan, Moore Elementary, Cy-Fair ISD; Photography Contest – Rolando Vera, Carver High School, Aldine ISD; Special Needs Poster – Miracle Holmes, Eisenhower 9th Grade, Aldine ISD; and 6th8th Grade – Mateo Oviedo-Cardona, Willow Wood Jr. High, Tomball ISD.

Ugly Business of Bullying 30 The

By Susan H. Soto Prepared: A Scout Troop, Lawyers, 33 BeaatPriest and a State Senator Save a Life Judicial Investiture

By The Hon. Charles Spain

Disruption: Social Media’s Negative 34 Impact on Education

By Christopher L. Tritico

Honors Longtime 36 Foundation Executive Director, Presents

Awards for Outstanding Volunteer Service

John J. Eikenburg Law 38 34th Week Fun Run Benefits The

The Houston Lawyer

Center

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2017. All rights reserved.

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March/April 2019

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contents March/April 2019

Volume 56 Number 5

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departments Message 6 President’s Making a Difference Through

Education

By Warren W. Harris the Editor 8 From The Importance of Public Education

By Polly Graham Fohn

THE RECORD 40 OFF David Gerger:

Songs for Our Times

By Allen Tanner

42

43

Profile in professionalism 41 ALynne Liberato

Partner, Haynes and Boone, LLP Committee Spotlight

42 Campaign for the Homeless

Committee: Breaking Down Barriers

By Colleen Migl

Spotlight 43 SECTION HBA Real Estate Section:

More than Dirt Lawyers

By Cassandra McGarvey

46

Trends 44 Legal Discrete Differences Between

Presenting Summary Judgment Evidence in State and Federal Courts in Texas

By Jeremy W. Dunbar

U.S. Supreme Court Finds That Special Needs Children Deserve Challenging and Ambitious Educational Benefits

By Anietie Akpan

ReviewS 46 Media Capital Cat and Watch Dog:

At It Again in Washington, D.C.

Reviewed by Kimberly A. Chojnacki

The Houston Lawyer

48 Litigation MarketPlace Correction: The incorrect photo of John Zavitsanos appeared on page 36 of the Jan/Feb issue in the “Off The Record” column. The correct photo appears here. The Houston Lawyer regrets the error.

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March/April 2019

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president’s message

By Warren W. Harris

Making a Difference Through Education Bracewell LLP

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The Houston Lawyer

ducation has been part of the Houston Bar Association’s core mission since the organization’s early days.

More than 100 years ago, the HBA supported the establishment of a county law library that would benefit both the profession and the public. Today, the HBA County Law Library Committee continues to work in an advisory capacity with the talented library staff.

In 1952, the HBA created the Speakers Bureau to educate the public on its rights and responsibilities under the law. An important part of that committee has always been outreach to Houston-area classrooms, showing students of all ages how the law relates to their lives, both as youth and as adults. The Speakers Bureau is the HBA’s oldest community service program, with attorneys speaking on all types of legal topics to adult groups, as well as presentations on law as a career to children and teens.

In 1975, the Juvenile Justice Mock Trial Program became one of the HBA’s signature programs, giving eighth graders a look at the justice system through the preparation and presentation of a mock trial. The young teens assume the roles of judge, attorneys, witnesses, defendants and court personnel. The five-week classroom sessions pair HBA staff with law students recruited from all three Houston law schools who work with students throughout Harris County to prepare their trials. Forty-four years later, the Juvenile Justice Mock Trial Program is still an important part of the HBA’s educational outreach, and the program has reached nearly 45,000 young teens.

When Charles R. (Reb) Gregg served as HBA president in 1995-1996, he brought together leaders from city and county government, social services and education for a round table discussion on the most important issues facing Houston’s communities. Their unanimous conclusion was that the most important mandate for Houston was the care, nurturing and education of children. The HBA has continued to develop many more programs to educate both youth and adults about the law and their legal rights. And HBA members have been integral to the development of all of those programs through volunteering their time, leadership and legal knowledge. You will read about a number of our programs to educate youth in this issue of The Houston Lawyer.

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March/April 2019

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I have had the privilege of being involved in one of our newest educational programs, Teach Texas. When I served as president of the Texas Supreme Court Historical Society in 2012, we began work on the first of a series of books to educate seventh-grade students on the history and structure of law and the judicial system in Texas, from the days of early Spanish colonization to the present. The first book, Taming Texas: How Law and Order Came to the Lone Star State, was written by noted historians James L. Haley and Marilyn Duncan, with a foreword by Texas Supreme Court Chief Justice Nathan Hecht. Working with the Texas Supreme Court Historical Society and the State Bar of Texas Law Related Education Department, the Houston Bar Association, under the leadership of 2015-2016 president Laura Gibson, was the first bar to implement the classroom curriculum, based on the stories and history included in the book.

The Teach Texas program sends volunteer attorneys and judges into classrooms to teach students about our state’s legal and judicial structure, backed up with classroom activities that bring the history of our laws to life. I have teamed up with jurists including Texas Supreme Court Justices Jeff Brown and Brett Busby and Fifth Circuit Judge Jennifer Walker Elrod for presentations, and many other judges have answered our call for volunteers in this important project. I am also pleased to report that the second book in the series, Taming Texas: Law and the Frontier, is now out and a copy of both books are presented to each classroom that hosts a presentation. Now in its fourth year, Teach Texas has reached over 20,000 Houston-area students.

Teach Texas is one of the programs you can read more about in this issue, in an article written by a volunteer.

As the father of four children, as well as an HBA volunteer, I realize the important role that lawyers can play in educating youth about the law, and the difference that can make in their lives. This is the perfect time to get involved in an HBA committee or program, as incoming HBA president, Benny Agosto, puts together his committees for the next bar year. I encourage you to volunteer for one of our educational programs for youth or adults by visiting www.hba.org and signing up. It will enrich your life, just as it enriches the lives of those who benefit from learning about the law.

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from the editor

By Polly Graham Fohn Haynes and Boone LLP

Associate Editors

Anietie Akpan Law Offices of Anietie Akpan, PLLC

Anna M. Archer U.S. District Court

Preston Hutson MehaffyWeber PC

The Houston Lawyer

Taunya Painter Painter Law Firm PLLC

Hon. Jeff Work The Freeman Law Firm, P.C.

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March/April 2019

The Importance of Public Education

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awyers are educators by trade. We counsel our clients on matters such as the implications of a contractual provision on their performance obligations, the impact a new regulation may have on their business and the merits of a lawsuit against them. We educate judges on the unique law and facts applicable to our cases.

And we mentor young attorneys and help them learn how to practice law, generate business and give back to our community.

The Houston Bar Association carries on this mission by supporting several programs devoted to educating the public about the law. This edition of The Houston Lawyer features six of these programs—the IDEA program, Teach Texas, Law and Constitution Day Readings, the Jury Service program, the Speakers Bureau and the Mock Trial program. These programs are staffed and run by volunteer lawyers who have devoted thousands of hours over the years to educating the public on the important aspects of the law set forth below: • The IDEA program sends lawyer-doctor teams to teach fifth graders about the health and legal consequences of drug use. It has reached more than 73,000 students.

• Through the Teach Texas program volunteer lawyers have educated more than 20,000 students about how the court system developed in Texas.

• On Law Day and Constitution Day, the HBA sends more than 100 volunteers to read selected books on these topics to elementary school students.

• The Jury Service Program educates more than thehoustonlawyer.com

3,000 high school seniors each year on the importance of performing each citizen’s civic duty of jury service.

• The Speakers Bureau acts as a liaison between groups seeking information about a particular legal subject and volunteer lawyers willing to speak on that subject.

• The Juvenile Mock Justice program teaches young teens about the justice system by helping 30-40 eighth grade classes each year prepare and then enact a mock trial.

The editorial board has also chosen to use this issue to highlight many of the pressing legal issues facing our broader public education system today. Miles Bradshaw, of Karczewski Bradshaw Spalding, writes on the often-controversial measures designed to address school safety. Susan Soto, a former teacher and principal who now represents students and parents in school law matters, addresses the legal and policy avenues available to deal with bullying in schools.

Jarvis V. Hollingsworth and Melissa M. Mihalick, of Bracewell LLP, discuss school districts’ legal liability for sports-related injuries. Rebecca Bailey and Christopher B. Gilbert, of Thompson & Horton LLP, analyze the newly proposed Title IX regulations regarding how schools should handle reports of sexual harassment or assault. Finally, Christopher L. Tritico, of Tritico Rainey, PLLC, discusses social media’s impact on improper relationships in schools.

A special thanks to guest editors Jeff Work and Kristen Lee for putting together this diverse and value-packed issue. And, as always, thank you for reading The Houston Lawyer.

BOARD OF DIRECTORS President

Secretary

President-Elect

Treasurer

First Vice President

Past President

Warren W. Harris

David Harrell

Benny Agosto, Jr.

Bill Kroger

Jennifer A. Hasley

Alistair B. Dawson

Second Vice President

Chris Popov

DIRECTORS (2017-2019)

Collin Cox Hon. Erin Lunceford

Diana Perez Gomez Robert Painter

Daniella Landers Lionel M. Schooler

DIRECTORS (2018-2020) Greg Moore Greg Ulmer

editorial staff Editor in Chief

Polly Fohn Associate Editors

Anna Archer Jeff Oldham Hon. Jeff Work

Preston Hutson Taunya Painter

Anietie Akpan Natasha Breaux Marcel de Chermont Al Harrison Trey Holm Stacey Lafitte Michael A. Lee David Lopez Tim McInturf George Murr Taunya Painter Sara Taheri Tara Taheri

Editorial Board

Brooksie Bonvillain Boutet Kimberly A. Chojnacki Anna DeMaggio Matthew Heberlein Jonathan Jabcuga Kristen Lee Scott Reiter Link Farrah Martinez Avi Moshenberg Marni Otjen Raymond Panneton Joseph Verret Koby Wilbanks

Managing Editor

Tara Shockley

HBA office staff Executive Director

Mindy G. Davidson

Associate Executive Director Tara Shockley Director of Education

Project Assistant

Ashley G. Steininger Christina Treviño Bonnie Simmons Alana Polk

Communications Assistant /Web Manager

Carly Wood

Education Assistant Director of Projects

Director of Membership and Technology Services Ron Riojas Membership Assistant Database Assistant Director of Development Receptionist/Resource Assistant Administrative Assistant

Danielle Keith Leo Skelly Diane Cervenka Lucia Valdez Valerie Ramirez

Advertising sales Design & production QUANTUM/SUR

12818 Willow Centre, Ste. B, Houston, TX 77066 281.955.2449 • www.quantumsur.com Publisher

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HBA Public Education Programs

Constitution Day and Law Day Readings:

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Engaging the Next Generation

By Trey Holm n September 17, 1787, the 39 delegates to the Constitutional Convention signed the U.S. Constitution. In commemoration, on the nationally recognized holiday Constitution Day, our HBA Lawyers for Literacy Committee coordinates readings in elementary schools across the Houston area. Similarly, on May 1 of each year, when the country celebrates Law Day to honor the rule of law in our society, the HBA Law Week Committee sends attorneys out into elementary schools to read to young children.

Literacy and civic engagement are paramount for maintaining liberty and freedom in our society. While totalitarianism is sweeping across the world at an unprecedented rate, literacy and civic knowledge in our communities is critically low. According to the Barbara Bush Houston Literacy Foundation, if a child is not reading on grade level by third grade, she or he is four times more likely not to graduate from high school.1 Further, one in four third graders in greater Houston scored unsatisfactorily on The Texas Assessment of Academic Readiness reading assessment in 2013.2 Low literacy often equates to low civic and political participation. Less than half of young Americans vote and less than 25% between 18 and 24 met a “proficient” standard of civic knowledge in the 2012 presidential election cycle.3 The numbers are even more concerning for minority students from low-income households. White, wealthy students are four to six times more likely than Hispanic or Black students from low-income households to reach a “proficient” level in civics on the National Assessment of Educational Progress.4 An engaging and rewarding opportunity is reading to young students on Constitution Day and Law Day. Last year, nearly 100 volunteer attorneys and judges read in 100 elementary schools on Constitution Day, of which I was one. The committee selected the book Grace for President by Kelly DiPucchio. The book follows Grace and her campaign to become the first girl elected President in her elementary school’s mock election. Using the backdrop of the mock election, DiPucchio explains the U.S. Electoral College and the electoral process in a straightforward, engaging way students understand.

I read DiPucchio’s book and discussed the Electoral College to first graders at Oak Forest Elementary School. Afterward, when it was time for questions, hands shot up like rockets outstretched with barely contained anticipation. “My oration and deft elucidaHBA First Vice President Jennifer A. Hasley of Hasley Scarano, L.L.P. cel- tion of the electoral college must have made an impact to elicit ebrates Constitution Day with students at Jefferson Elementary School. so many queries,” I thought. Calling on the first inquisitor, she jumped up and exclaimed, “My mom went to UT!” And, the second, “My dad went to A&M.” “My mom is a judge,” another student called out. And, so it went.

As attorneys, the written word is our tool like a paint brush is to the painter or the piano is to the musician. We might take reading, comprehension, and expression for granted. Just as attorneys are advocates for our clients, we need to become advocates for childhood literacy. The Lawyers for Literacy Committee’s work in promoting literacy and advancing civic knowledge is an important supplement and support of civic education and teachers in our

schools. Each year, the Comlike to be a part of these programs, mittee strives to reach more contact Bonnie Simmons, HBA projschools, so every volunteer ects director, at bonnies@hba.org or counts.

(713) 759-1133 for more informaFinally, near the end of my tion. time with the Oak Forest first graders, their teacher gently Trey Holm is supervising attorney admonished the students that for the Harvey Legal Relief Project our time was for questions of Houston Volunteer Lawyers. only. After her instruction, His team coordinates free legal there was time for one more. services to low-income families Susie, what is your question? Trey Holm, an attorney with Houston Volunteer Lawyers Hurricane Harvey affected by Hurricane Harvey “Um... What college did you Project, has the rapt attention of students at Oak Forest Elementary. with volunteer attorneys. His is a go to?” Maybe I did not get a lot of questions about the actual member of The Houston Lawyer editorial board. topic—the U.S. Constitution—but the kids were absolutely engaged in personal stories and higher education. Reading with Endnotes 1. Baker, et al., Houston’s Literacy Crisis: A Blueprint for Community Action (2013). those students was inspiring and hopeful.

2. Id. at p. 7.

This year, on May 1 and September 17, I invite you to bring 3. The Center for Information & Research on Civic Learning and Engagement, All together Now: Collaboration and Innovation for Youth Engagement, The Report on Youth the Constitution, the rule of law, and the love of reading to our Voting and Civic Knowledge (2013). children, as well. You just might learn something. If you would 4. Id. at p. 24.

IDEA Program Helps Fifth-graders Preview the Health and Legal Consequences of Drug Abuse

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a constant source of feedback.

By Kristen Lee That peer pressure—for better hink about your own fifth or worse—is inescapable in fifth grade experience. Your grade and it grows in importance days are dominated by to you as you prepare to enter lessons in math, science, middle school. social studies, and language arts.

Fifth grade represents a sort of You may yearn for the break threshold to adolescence, and it that P.E. provides, or maybe is a good time to address some your stomach is grumbling beof the downsides of that peer fore the clock strikes 10 a.m. pressure. The Houston Bar Asand you count the minutes unsociation and the Houston meditil lunch. Throughout the group Erika Ramirez of the Harris County District Attorney’s Office shows stuprojects and creative writing as- dents at DeZavala Elementary School what youth have to wear when de- cal community established the Interprofessional Drug Educasignments, you crack jokes with tained for crimes. tion Alliance (IDEA) program in 1992 to equip fifth graders your neighbors. In fact, you spend a big chunk of your day with the information they need to make decisions about their being social. That is part of your education. You get to know health and safety as they face mounting peer pressure in midyour teacher and learn the rules of the classroom. You learn dle school and beyond. about expectations in certain settings: recess is for being loud, The IDEA Program deploys teams consisting of an attorspelling tests require quiet. Your classmates provide you with thehoustonlawyer.com

March/April 2019

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ney and a medical professional to at work and to learn more about Houston-area elementary schools the health and legal professions to encourage dialogue about the rebased on these interactive lessons. alities of abusing drugs and alcohol.

Since 1992, the IDEA Program has Physicians discuss how drugs, alcoreached more than 73,000 students hol and tobacco impact minds and in many local school districts in the growing bodies, while attorneys disHouston area. cuss the perils of entering the crimiContact Ashley Gagnon Steininger, nal justice system. The IDEA comHBA education director, at ashleyg@ mittee reviews and updates the legal hba.org or 713-759-1133 to sign information included in the training up as an IDEA presenter, or if your materials used by the volunteers. school is interested in hosting an The IDEA Program is about preIDEA presentation viewing consequences. It is about providing young people with an op- Rehana Vohra of the Harris County District Attorney’s Office and Kristen Lee is an attorney Derick Mendoza of Linebarger Goggan Blair & Sampson, LLP (2nd portunity to discuss the ramifica- and 3rd in back row) with Dr. Stephanie Nguyen and Dr. Maggie and a senior policy advisor for tions of certain actions with profes- Barghash with 5th graders at Meador Elementary School. the Office of Adrian Garcia, sionals. Students also have the opportunity to see professionals Harris County Commissioner, Precinct 2.

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Promoting the Importance of Jury Service

By Koby Wilbanks he right of an accused to demand a jury of their peers is one of the most important legal rights available in the United States. Not only is the right to a jury impactful to the accused, it is also the most direct method for citizens to influence the local legal system. However, even though jury service has an intense and lasting impact on communities, many residents do everything they can to avoid jury service, leading to low juror turnout and, ultimately, jury pools that do not accurately represent the overall demographics of the community.

In an effort to increase engagement and instill a sense of responsibility and interest regarding responding to a jury summons, former HBA president and current State Bar president-elect, Randy Sorrels, created the Jury Service 12

March/April 2019

Judge Jennifer Walker Elrod, now a U.S. District Judge for the Fifth Circuit, joined Randy Sorrels in 2005 for a presentation at Cliffwood School on the importance of jury service.

This year, Randy Sorrels spoke to students at Memorial High School on the myths and realities of jury service, on a day when students could dress like a rock star or a sports figure.

thehoustonlawyer.com

Program in 2005, with a focus on areas of Houston that have historically low participation in jury service.

“Sometimes, our schools can underemphasize the importance of our third branch of government,” said Sorrels. “This program brings young adults into the judicial branch as soon as they are called for jury service. It teaches direct civic involvement and makes a difference in the lives of those at the courthouse.”

The Jury Service Program is geared toward high school seniors and is structured around an interactive experience designed to engage students in the importance of juries, the need for active community engagement, what to expect during the jury selection process, and what serving on a jury is actually like. The program reaches more than 3,000 students each

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year. Of utmost importance, the program helps students understand the impact that juries have on members of their community and the benefits of ensuring that juries accurately represent the demographics of their community.

The HBA operates the Jury Service Program solely through volunteer attorneys and judges. The HBA provides the volunteers with a full curriculum for the program, including handouts on legal terminology and the history of the jury system, lesson plans

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and games.

If you are an educator at a school that would like to host a Jury Service Program or an attorney that would like to volunteer to lead a program, please reach out to Ashley Steininger, HBA education director, at ashleyg@hba.org or 713-759-1133.

Koby Wilbanks is an associate at Murrah & Killough, PLLC and a member of The Houston Lawyer editorial board.

HBA Juvenile Justice Mock Trial Program Brings Reality of Courtroom to 8th Graders

By Tara Shockley They help the eighth grade stun a world of Netflix, YouTube dents develop their own case and countless other apps, mestory and assume the roles of dia and social media options judge, prosecutors, defense atfor getting information about torneys, witnesses, defendants, legal issues, there is still no betcourt personnel, and jurors. The ter way to learn about the justice law students help the eighth system than to observe a real trigraders develop questions, preal or, even better, to participate pare witnesses and teach trial in one without having to worry procedure. if you win or lose.

“During our introduction to That is exactly the experience the program, many students will that the Houston Bar Associaadmit that they have no knowltion’s Juvenile Justice Mock Trial Program has provided for nearly Student jurors are sworn in at a mock trial at St. Jerome Catholic School. edge of the law, and they seldom say that they want to be a lawyer,” said Keyona N. White, a law 45,000 eighth grade students throughout the Houston area student at Thurgood Marshall School of Law who worked in since the program began in 1975. That is the year the HBA the program this year. “But as we progress, I’ve noticed that hired Kay Sim to establish and implement a program that many students become aware, and sometimes their passion for would teach young teens about the justice system through the the law is awakened. This program is an introduction to the preparation and re-enactment of a mock trial. justice system for some and a glimpse of the future for others.”

“We wanted to give young teens a positive exposure to the At the end of the trial, the case is debated among student julaw, deter them from juvenile crime, and increase their selfrors and the verdict is announced by the student judge, usually esteem,” said Sim, who was named executive director of the to both applause and expressions of disappointment, dependHBA in 1981 and recently retired. “For everyone involved in ing on which side the student is on. the program, it has been gratifying to see these goals accomStudent participation varies among schools. Some schools plished, year after year.” have their advanced level classes participate, while others use The program is a collaboration between the HBA, local law the program to build self-esteem among students who may schools, and schools throughout Houston, working with 35be at risk. “As a former eighth grade student participant in 40 eighth grade classes each year. HBA education department Mock Trial when I was in middle school years ago, that exstaff work with law students recruited from all three Houston perience was engagingly unforgettable and instrumental in law schools during weekly classroom sessions for five weeks.

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a trip to the courthouse where, with the cooperation of Harris me majoring in political science in college,” said Charlotte D. County judiciary, they would conduct their mock trial in a real Davis, a teacher at Paul Revere Middle School in HISD. “I usucourtroom. However, that step in the ally choose my advanced level classes program has been a victim of Hurto participate because many of them ricane Harvey. Flooded courthouses often see the Mock Trial experience have meant judges sharing courtas an introduction and a gateway into rooms, which in turn has meant that many different professions such as no courtrooms are free for use in law enforcement, attorneys, coroners, mock trials. For the past two years, doctors and teachers, since they play the mock trials have been conducted those roles in their Mock Trial perat the schools, after the completion formances. of the classroom sessions. It is hoped “Many of the students get so inthat as recovery construction is comvolved in their roleplaying, that it pleted, the students will once again guides them into the career they will have the excitement of traveling to consider while planning for their the courthouse complex to showcase future. This is why, as a teacher, I jumped at the opportunity to incor- Law students work with student attorneys during a mock trial at what they have learned.

If you would like to learn more porate this awesome educational pro- Navarro Middle School. about the HBA’s Juvenile Justice Mock Trial Program, please congram at my previous and current middle schools.” tact HBA Education Director Ashley Steininger at ashleyg@hba.

The program works with a maximum of ten schools in each org or 713-759-1133. five week session, and there are two spring sessions and two fall sessions each school year. Some schools have a class of seventh grade students serve as jurors. All schools are encouraged to inTara Shockley is the associate executive director of the Houston vite parents to attend.

Bar Association and serves as managing editor of The Houston In the past, the culmination of the students’ hard work was Lawyer.

Speakers Bureau: Bringing Tailored Legal Talks Directly to Communities

A

fect acts as a liaison between groups seeking

By Marni Otjen information about a particular legal sublmost every day, whether we work ject, and HBA members willing to present in the legal profession or not, we are on that topic. If a local middle school would confronted with some type of legal like its students to understand the legal imissue. Maybe the issue is related to plications of cyberbullying, the Speakers social security or VA benefits, or the dispoBureau will connect the school administrasition of real estate or other assets. Perhaps tion with an attorney who will speak directit is a question about access to, or control ly to those students about that subject. If a of, our medical or other personal informahospital would like its employees to better tion. Whatever the underlying issue, it can understand the law concerning advanced be confusing and complicated to find the indirectives, the Speakers Bureau will connect formation we need, and we often turn to our it with an attorney to present on that issue. schools, community centers, or other orgaThere is no “list” of topic choices; the Speaknizations for help. But where, and how, do United States Magistrate Judge Andrew M. Ediers Bureau simply responds to each organithose groups get the answers? son frequently speaks at schools on “Law as a zation’s individual request.

The Houston Bar Association Speakers Career” on behalf of the Speakers Bureau.

There also is no specific set of criteria identifying the types of Bureau, one of the many educational outreach programs of the organizations that can access, and benefit from, a presentation HBA, addresses just that problem. The Speakers Bureau in ef16

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career and personal life, sharing with the class her own experiby the Speakers Bureau. This bar year alone, the Speakers Buence of having a baby between her second and third years of reau has partnered with elementary, middle and high schools. law school. At the end of the presentation, a student, who was It has provided speakers to community colleges and community also a new mother, came up to her and centers. Presentations have been done said, “You convinced me that I can do for other local legal organizations, everything.” It is moments like these businesses, and government offices. that make an impact.

The Speakers Bureau, drawing on the The Speakers Bureau provides a pubgreat depth and breadth of experience lic service to the community, and allows within the HBA, is able to find excelfor community exposure, in a positive lent speakers on virtually any legal way, to lawyers and the legal profestopic, and for any interested audience, sion. If you are an attorney with an inregardless of demographics. terest in speaking, consider presenting The benefits for audiences around on behalf of the Speakers Bureau, and if Houston are obvious, but what about you represent a local group with an infor the attorneys who volunteer to terest in a particular legal issue, request speak? The Hon. Erin Lunceford, a a presentation from a Speakers Bureau frequent presenter, says that from the volunteer. For more information, please speaker’s perspective, presentations contact Ashley Steininger, HBA educacan be “incredibly moving.” Judge tion director, at 713-759-1133 or email Lunceford remembers an experience at ashleyg@hba.org. when she presented to a small class A student at Boone Elementary School drew this picture to of mostly women, at an at-risk school, thank Speakers Bureau co-chair Donna Thomisee for visitabout pursuing law as a career. Judge ing her class.

Marni Otjen is an attorney, and Lunceford told the students that you “can do all things by being current member of The Houston Lawyer editorial board. She a lawyer” and discussed the idea of balance between your legal can be reached at mmotjen@gmail.com.

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Teach Texas:

Inspiring a New Generation of Lawyers

H

cal Society Journal; Judge Erin Lunceford;

By Natasha Breaux and Justice Brett Busby. The committee ave you ever wondered what it worked to recruit and train a coalition of would be like to teach class at your lawyers and judges to visit seventh grade former middle school? This curiosclassrooms throughout the area for two ity was satisfied for me through the classroom sessions to teach the book, TamTeach Texas program. ing Texas. New volunteers may join the The goal of Teach Texas is to educate sevcommittee each year and are provided with enth-grade students on how our state’s court an orientation and materials that they can system fits into the larger picture of Texas view in-person or online. history, from the days of Stephen F. Austin The Society has now published a second to the present. Thanks to volunteer lawvolume, Taming Texas: Law and the Texas yers and judges who have dedicated their Frontier, that takes a closer look at how life time to teaching at least two classroom ses151st District Court Judge Mike Engelhart speaks sions, over 15,400 Houston students have to 7th graders at Landrum Middle School on the on the frontier of Texas both shaped and was shaped by changing laws. The HBA been taught these important lessons, using history of Texas law.

Teach Texas Committee is also using this resources developed by the Texas Supreme book in its classroom curriculum.

Court Historical Society and the State Bar For me, returning to my former middle of Texas law-related education department. school in west Houston was fun and rewardThe program had its genesis in 2013, ing. The students seemed excited to learn when former U.S. Supreme Court Justice about the law from an attorney. On the first Sandra Day O’Connor spoke at a Texas day, they actively engaged in a discussion Supreme Court Historical Society event. about how our legal system has developed Among her topics was the importance of over time. On the second day, they learned teaching civics in the public schools. Curabout our courts through a team game. In rent HBA president, Warren Harris, was the end, they understood how a case proserving as president of the Society at the ceeds from initial injury through appeal, as time, and was inspired to turn her words Trisha Pollard guides students through an activinto action. That vision became reality ity that teaches them about the different types well as why a litigation system is a valuable way to settle civil disputes. when the Society published Taming Texas: of courts in Texas.

After my teaching duties were over, I was How Law and Order Came to the Lone Star able to walk the halls of my former middle State, written by award-winning historian school while memories flooded back of my James L. Haley and co-authored by Marilyn time there, from debate practices to writP. Duncan, specifically for seventh-grade ing classes. Back then, I had no idea that Texas history classes.

I wanted to be a lawyer. Perhaps my Teach The book uses stories and photos to help Texas lessons have inspired some students students place themselves in an early Texas to take the same path. in which there was no law or order, and Sign up to participate in the next round of challenges them to think about how a solessons, occurring through May 10, at www. ciety begins to organize itself. Subsequent hba.org/committees/teach-texas or contact stories show how laws were made and testAshley Steininger, HBA education director, ed in the courts over the next 150 years, Texas Supreme Court Justice Brett Busby with an emphasis on the aspects of the Tex- speaks to students at Gregory Lincoln Middle ashleyg@hba.org.

School as part of the Teach Texas program. as experience that are uniquely our own.

Natasha Breaux is an appellate attorney at Haynes In 2015-2016, then-HBA President Laura Gibson created the and Boone, LLP and a member of The Houston Lawyer Teach Texas Committee, co-chaired by David Furlow, who was editorial board. serving as executive editor of the Texas Supreme Court Histori18

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exploring best practices in family mediation

C IATION

USTO HO N

A.A. WHITE DISPUTE RESOLUTION CENTER R AS S BA O

18 7 0

You are cordially invited to attend the Houston Bar Association's

Annual Dinner

Thursday, May 16, 2019 6:30 p.m. reception 7:00 p.m. dinner

The Houstonian Hotel Join us in welcoming Benny Agosto, Jr. of Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz as the 20192020 President of the Houston Bar Association.

The training introduces family mediation as a method of resolving disputes that arise in marital dissolution, property division, modification, enforcement, conservatorship, parentage and other family litigation. Participants learn skills to mediate family conflict through interactive discussion, lecture and role play/simulation.

The program fulfills Texas statutory mediation education requirements and complies with Texas Mediation Trainers Roundtable Family Mediation Training standards.

The course includes a minimum of four hours of family violence dynamics training developed in consultation with a statewide family violence advocacy organization in compliance with Senate Bill 539 passed by the 85th Texas Legislature.

PROGRAM SCHEDULE

PAYMENT

Date

June 5 – June 8, 2o19

•

Time

9:30 am – 6:30 pm

We accept cash, check and credit card** ($995.00 if paying by credit card)

Location

UH Law Center

•

Make checks payable to: UH Law Foundation

Cost

$975.00**

•

Facilitators

Robert Hughes Tracy Leissner

Mail to University of Houston, 4604 Calhoun, Suite 59, Houston, Texas 77204-6060 ATTENTION: Judy Clark

Credit

34 CLE hours 6 Ethics Hours

•

Payment must be received no later than April 26, 2019

To register go to: http://www.law.uh.edu/blakely/aawhite/30-hour-basic-mediation-training.asp Contact: Judy Clark | Program Manager @ 713.743.2066 or jclark@uh.edu The University of Houston is a Carnegie-designated Tier One public research university and an EEO/AA institution.

Visit www.hba.org/annualdinner to purchase tickets online at $156 per person. Tables of 8 and 10 also are available.

Black tie optional.

Seating is limited.

Ticket purchase deadline is noon on May 8. No tickets sold at the door. thehoustonlawyer.com

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By Randall O. Sorrels and By Miles T.A.Bradshaw Michelle Ciolek

Texas Safe Schools 2020:

School Security in a Modern Era

S

chool safety and security is one of the most sensitive areas of practice right now for attorneys specializing in education law related to Texas school districts and charter schools. It touches everything school administrators and employees do, every day.

As a former in-house attorney for Houston ISD in the 1990’s, I had the privilege of practicing school law under the leadership of then Superintendent of Schools, Rod Paige. During that time, HISD adopted its strategic plan, Beliefs and Visions. The very first belief was especially insightful - “Safety Above All Else: Safety takes precedence over all else.”1 As 2020 approaches, the wisdom and fundamental principle championed by former U.S. Secretary of Education Paige rings truer than ever. As Grover Cleveland once said, “Men and times change—but principles—never.”

How public schools address school safety is a sensitive issue with significant ramifications. It would take a weeklong summit to present even a sampling of available opinions and theories on school safety. As our state’s Legislature gears up to tackle several school-related hot topics in 2019, it will surely hear powerful testimony before its newlycreated Senate Select Committee on Violence in Schools. All of us should take interest and become involved in this topic in some way. As a primer for an educated debate, here are some of the practical legal issues facing schools.

Arming Public School Employees It is no secret that Texas public schools have the authority to authorize employees and others to carry a firearm on school property. Most school districts that have done so use what is known as the “Guardian Plan.” The legal authority for a Guardian Plan is an exception that has existed for years in Penal Code 46.03(a)(1), whereby a person carrying a firearm on school property “commits an offense if the person intentionally, knowingly, or recklessly possesses... a firearm... unless pursuant to written authorization of the institution.” (emphasis added.) It was this exception that was first used in 2007 by Harrold ISD in the Texas Panhandle to give written authorization to designated employees to carry a firearm to protect against intruders.

In 2013, the Legislature created a similar plan called the Marshal Plan, whereby a school board could designate an employee to serve as a school marshal upon proper training and licensing by the Texas Commission on Law Enforcement (TCOLE). Unfortunately, the Marshal Plan’s provisions have proven unwieldy and too stringent in certain requirements related to gun storage, gun access, and the limited authority to use deadly force. Almost all districts opt for the broader Guardian Plan where they have more discretion in shaping the requirements and authority, including designating school board members as

Guardians.2 With many nuances, districts should consult active shooter experts and legal counsel before adopting a Guardian Plan.

Governor Abbott’s Call to Action In February 2018 after the school shooting at Douglas High School in Parkland, Florida, Governor Abbott issued a letter to Texas Education Commissioner, Mike Morath, to catalog and share school safety best practices with the Texas School Safety Center.3 He also demanded compliance of all districts with their school safety audit requirements under Texas Education Code 37.108. Finally, the Governor instructed Commissioner Morath to work with the Texas School Safety Center, the Texas Department of Public Safety, and the Governor’s office to draft recommendations to the Texas Legislature. In turn, Morath addressed Texas school boards with safety options allowed under the law. In addition to creating a Guardian Plan, school districts and charter schools can hire private security, create their own police department of commissioned police officers, hire SROs (a School Resource Officer commissioned as a peace officer by another governmental entity), and/or use existing school employees as “School Marshals” under TEC 37.0811.

Three months later the Santa Fe High School shooting happened. The Governor organized political and administrative forces to create his School and Firearm Safety Action Plan. The plan called for immediate funding assistance for the school district, long-term grants and available state funding for qualified security measures at campuses, and increased options for security personnel (such as incentives to hire retired personnel as school security officers). Several other aspects of the plan include recommending revisions to existing laws on School Marshals to make the Marshal Plan statute more user-friendly.

The plan also calls for “hardening” of campus facilities, such as tighter security designs, equipment and technology

the School and Firearm Safety Action Plan includes encouraging local school districts to develop threat assessment programs with goals and strategies for identifying students at risk for mental health issues. A pilot program was started through Texas Tech University Health Sciences Center in which Lubbock ISD participated by allowing threat assessment screenings to be conducted in limited circumstances. The program was titled the Lubbock Telemedicine

at entrances, and more alert systems tied to lowering local law enforcement response times. Finally, it encourages increased monitoring of social media for direct threats and interventions. In Texas Education Code 37.0832, state laws related to cyberbullying (a/k/a “David’s Law”) allow school districts to discipline students for social media posts made away from school that violate a district’s Student Code of Conduct.

A somewhat controversial measure in

Your Values.

Your Influence.

Your Legacy.

Our Advice.

From left: Tom Williams, Donnie Roberts, Maureen Phillips, Leah Bennett, Shelitha Smodic, Allen Lewis, Susan Wedelich

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leave; and (2) presents a risk of substanWellness Intervention Triage and Refertial harm to someone, or (3) the person ral (or TWITR). The TWITR project was behaves in a manner inappropriate for created following a grant from the Crima school setting after receiving a verbal inal Justice Division, Office of the Govwarning from a school administrator, ernor of Texas. After the Santa Fe shootpeace officer, or SRO, to cease the inaping, the Governor praised the TWITR propriate behavior. The law does proprogram. Several school districts have vide certain exceptions, used the program, but notice and appeal rights, it creates several justibut generally is an excelfied concerns by adminlent tool to control visiistrators, parents and tors on school property. students. While the conAnother available tool cept should be studied, that has become more such a threat assessment accessible from a cost program is likely riddled standpoint is the instalwith ethical and legal lation of security camerprivacy issues that must School safety as in many areas around be carefully and fully school property. Under examined to predict the and security Texas Education Code effectiveness and viabilis one of the 26.009, school districts ity of such a program. are generally required most sensitive to obtain parental conCommon Legal Tools areas of practice sent before making a for Promoting Safety videotape of a student, in Schools right now but a broad exception There are already severexists if the videotape al laws on the books that for attorneys or audio recording is to act as tools to promote specializing be used for a purpose safety in schools. For related to the promotion example, while school in education law of student safety. This campuses have tradirelated to exception gives school tionally been considered districts great latitude in the “community’s” gathTexas school installing safety cameras ering place, in recent districts and throughout campus hallyears school campuses ways and other areas. are not as “open” as in charter schools. the past. While school It touches Our Texas property is loosely conLegislature sidered “publicly owned everything school As of mid-January 2019, by the taxpayers,” cer16 bills related to school tain state laws, such as administrators safety had been filed in Texas Education Code and employees do, the Texas House or Sen37.105 and 37.107, give ate, ranging from metal school district adminisevery day. detectors (HB 797), trators the authority to school finance formulas that include control access to school property and security costs (HB 567), mental health activities, and to ban persons who it has services for students (HB 198), armed a reasonable good faith belief may cause school board members (HB 734) and a substantial disruption to school acstudent searches (HB 58), just to name tivities. School administrators, resource a few. Expect many more in the 2019 officers, or peace officers may eject an session, some of which will be aimed individual if (1) the person refuses to

“

”

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at the School Marshal Plan to make it easier and more cost effective for school districts to provide armed security at schools. Also, proposals might include creating a new category of peace officers with more school safety targeted training.4 Conclusion “Safety Above All Else” is a phrase with significant meaning for Texas public schools and citizens. This fundamental principle was true in 1995, and it rings true as we approach the year 2020.

Many aspects of school safety are carried out by the leadership of board members and the common sense and diligent work habits of Texas school educators.

In some respects, simply enacting more “school safety” laws is not the answer.

At the same time, one can bet there will be compassionate debate in Austin and around the state in 2019, if our legislators work to create workable funded solutions for schools. Practical and effective laws can be a helpful tool for educators, parents, and our communities. The approach of the year 2020 can serve as a symbolic period to truly focus on school safety measures to serve and protect our children, teachers, and citizens.

Miles T. Bradshaw is a partner with Karczewski Bradshaw Spalding and has represented school districts, community colleges, cities and other governmental entities for over 25 years.

Endnotes 1. See Donald R. McAdams Fighting to Save Our Urban Schools... and Winning! Lessons from Houston and What School Boards Can Do: Reform Governance for Urban Schools (New York: Teachers College Press, Columbia University 2000).

2. Tex. Att’y Gen. Op. No. GA-1051 (2014).

3. The Texas State Texas School Safety Center is an official university-level research center at Texas State University that is tasked with key school safety and security initiatives and mandates by provisions of Chapter 37 of the Texas Education Code. https://txssc.txstate. edu/ 4. For an active list of filed bills, see https:// legiscan.com/TX.

Equal Access Champions

The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers.

Large Firm Champions Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP

Corporate Champions CenterPoint Energy, Inc. Exxon Mobil Corporation Halliburton Energy LyondellBasell Industries Marathon Oil Company Shell Oil Company

Mid-Size Firm Champions

Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Chamberlain Hrdlicka Clark Hill Strasburger Foley Gardere LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP Porter Hedges LLP

ReedSmith LLP Sidley Austin LLP Winstead PC Winston & Strawn LLP

Boutique Firm Champions

Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz Blank Rome LLP Dentons US LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. LeClairRyan McDowell & Hetherington LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP

Small Firm Champions

Coane & Associates Frye, Benavidez and O’Neil, PLLC Fuqua & Associates, P.C. Gibson, Dunn & Crutcher LLP Givens & Johnston Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KoonsFuller, P.C. MehaffyWeber, P.C.

Quinn Emanuel Urquhart & Sullivan, LLP Shortt & Nguyen, P.C. Trahan Kornegay Payne, LLP

Individual Champions

Law Office of Peter J. Bennett Law Office of J. Thomas Black, P.C. Burford Perry, LLP The Dieye Firm The Ericksen Law Firm Law Office of Todd M. Frankfort Hasley Scarano L.L.P. David Hsu and Associates The Jurek Law Group, PLLC Law Firm of Min Gyu Kim PLLC The LaFitte Law Group, PLLC Law Firm of Catherine Le PLLC C. Y. Lee Legal Group, PLLC Law Office of Gregory S. Lindley Martin R. G. Marasigan Law Offices Law Office of Evangeline Mitchell, PLLC Rita Pattni, Attorney at Law Law Office of Robert E. Price The Reece Law Firm, PLLC Sanchez Law Firm Law Office of Jeff Skarda Angela Solice, Attorney at Law Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Law Office of Cindi L. Wiggins, J.D. Trey Yates Law

By Rebecca Bailey and Christopher B. Gilbert

An Update on Title

I

IX

n November 2018, Secretary of Education Betsy DeVos unveiled newly proposed Title IX regulations regarding how schools should handle reports of sexual harassment or assault.1 Coming on the heels of the #MeToo movement, the new rules generated an immediate reaction by the press. Some have praised DeVos for clarifying the Title IX guidelines, while others, including victims’ rights advocacy groups, have condemned the proposals as undermining support for victims of sexual harassment, expanding the rights of the accused, and over-protecting schools. While the regulations do provide some clarity as to what is expected of school districts who receive reports of sexual misconduct, the new rules also create a more formalized and potentially arduous process that many smaller schools—particularly at the K-12 level—will find expensive, time consuming, and difficult to accomplish in light of available resources.

Here are highlights from the proposed changes: 24

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The rule creates a legal duty to respond only when the school has “actual knowledge of sexual harassment that occurred within the school’s own education program or activity.”2 Three categories of employees could have knowledge of sexual harassment that would be imputed to the recipient: (1) the Title IX coordinator; (2) any official who has authority to institute corrective measures on behalf of the recipient; and (3) a teacher, with regard to student-on-student sexual harassment in the elementary and secondary school context. As the rule would apply to colleges, it would mean that colleges would be legally responsible for handling only those formal complaints made to the Title IX Coordinator or an official with the ability to remedy the situation. That would presumably not include reports to professors, resident advisers, and others. Colleges would not be liable under Title IX if someone told a faculty member about an incident and that faculty member did not report it to the Title IX office.

With a narrower definition of what constitutes “sexual harassment,” the new rules could raise the bar for when a school is required to open an investigation. The new rules would adopt the Supreme Court’s definition of sexual harassment to include “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity[.]”3 The Obama administration had defined harassment more broadly as “unwelcome conduct of a sexual nature.”4 A school’s responsibility to investigate only applies to alleged incidents occurring on campus or within an educational program or activity.

Under previous rules, particularly at the college level, critics had complained that many alleged incidents of sexual

misconduct had happened at apartments that were located just off campus, and it was not clear whether those would have to be investigated. The new rules do note that although a school can only be responsible for conduct within its control, the school may still offer support services or intervene if a reported incident happened outside of that scope.

The proposed rules clarify that a school “acts with deliberate indifference only when it responds to sexual harassment in a manner that is ‘clearly unreasonable in light of the known circumstances.’”5 Again based on Supreme Court precedent, this means that a school must “do something” when faced with allegations that a student has been sexually harassed or assaulted. If a school receives a formal complaint and follows its grievance process in response, the school is granted a safe harbor against a finding of deliberate indifference.

be available for elementary and secondary schools.

The rules would require a more formalized procedure for investigating claims of sexual harassment.

This includes: a formal complaint; written notice of the allegations to the accused prior to any initial interview; equal opportunity for both parties to present witnesses and evidence, to examine the evidence, and to be accompanied by an advisor of their choice; and a requirement that a written investigative report be shared with the parties prior to a hearing. Some schools may be concerned about the requirement to turn over all evidence gathered as part of the investigation—which often includes student witness statements—and how that will implicate federal student privacy laws, but the Department makes clear that a school’s responsibilities under these proposed rules are not obviated by those privacy laws. The new rules stress that the accused is presumed in-

nocent until the investigation is complete, and the burden of proof remains on the school—a concession to critics of the old rules, who felt that accused students were often “presumed guilty” from the start of investigations.

A person accused of sexual misconduct at the college level would be guaranteed the right to crossexamine the accuser.

To some, the most controversial part of the new regulations is the requirement that accused students be allowed, through an advisor or attorney, to crossexamine their accusers at a live hearing.

Many critics are concerned that requiring cross-examination could negatively impact the willingness of people to report sexual assault. But advocates for accused students say the deck is stacked against them when they cannot question their accusers, observing inconsistencies in testimony and assessing a witness’s demeanor. During the crossexamination, questions about either

Schools are incentivized to provide free supportive measures with or without a formal investigation.

Even where a formal complaint has not been filed (and therefore a duty to investigate may not have been triggered), the school must still “respond meaningfully” to known reports of sexual harassment.6 In this regard, the proposed rules offer colleges “a safe harbor from a finding of deliberate indifference” where they offer “supportive measures” to the parties involved.7 These services are non-disciplinary and non-punitive, should be age-appropriate, and are to be available free of charge to both the accuser and the accused. The proposed rules set out specific examples, including counseling, deadline extensions, no-contact orders, campus escort services, leaves of absence, increased security, and changes in class schedules. Recognizing that younger students need additional protection, this same safe harbor would not thehoustonlawyer.com

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party’s sexual history cannot be asked, The proposed rules would allow in line with rape shield protections for the emergency removal of a which guard victims against “invasion student prior to the completion of of privacy, potential embarrassment and an investigation in certain circum8 stereotyping.” stances, consistent with procedures Either party may also under IDEA and Section request to be separated 504.10 The new rules and placed in different Schools would have the rooms, with a video feed option of using a highwould adopt the for the live hearing. “The er standard of proof.

Supreme Court’ s proposed regulations When deciding whether thereby provide the sexual misconduct ocdefinition of sexual benefits of cross-examcurred, the Obama-era ination while avoiding guidance told schools harassment to any unnecessary trauma to adopt a “preponderinclude that could arise from ance of the evidence” personal confrontation standard, i.e. that it is “unwelcome between the complainmore likely than not conduct on the ant and the respondent,” that the misconduct the proposal states.9 For had occurred.11 “Prebasis of sex that elementary and secondponderance of the eviary schools, cross-exis so severe, dence” is the standard amination is permitted used by federal courts pervasive, and but not required due to in civil rights cases the young ages of those and other types of stuobjectively offensive involved. dent misconduct. The that it effectively new rules would allow schools to apply either The rules would denies a person that minimal standard prohibit using the equal access to or the higher “clear and “single-investigator” convincing evidence” method, requiring a the recipient’s threshold. Both are decision-maker less stringent than the education program who is not the same “beyond a reasonable person as the Title or activity[.]” doubt” standard usuIX coordinator or the ally needed for criminal investigator. convictions.

At many schools, especially smaller school districts and colleges where there is a limited pool of employees, Schools would have more flexibility cases are often handled by a single into use mediation and other informal vestigator, who conducts the interviews, resolution procedures, so long as it is writes a report, and issues a finding voluntary for all sides. about whether school policies were vioPrevious guidance had said that medialated. The proposed regulations would tion—as opposed to a formal investinot allow that. In addition, the progation and adjudication process—was posed rules prohibit a Title IX coordinot appropriate in cases involving an nator, decision-maker, or investigator alleged sexual assault, because of confrom having a conflict of interest or bias cerns that alleged victims might feel (without defining what that would be or pressured by their schools to particilook like), and would require training pate in what could be a traumatizing for these individuals. process. Proponents suggested that me-

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diation could appeal to students who did not want the person who assaulted them suspended or expelled. The proposed regulations say schools may opt for an informal resolution at any time, provided that both parties voluntarily agree to it. The resolution procedures may be binding or non-binding.

The proposed changes to the Title IX regulations are still not final, and public comments were allowed up to January 28, 2019. The Department of Education must incorporate all comments into the final rules.

Rebecca Bailey is a senior associate with the Houston office of Thompson & Horton LLP. With a previous career as a teacher, she practices primarily school law.

Christopher B. Gilbert is a founding partner of Thompson & Horton LLP, practicing with a specialty in school law for over 25 years.

Endnotes

1. Secretary DeVos: Proposed Title IX Rule Provides Clarity for Schools, Support for Survivors, and Due Process Rights for All, U.S. DEP’T OF EDUC. (Nov. 16, 2018), www.ed.gov/ news/press-releases/secretary-devos-proposed-title-ixrule-provides-clarity-schools-support-survivors-anddue-process-rights-all.

2. U.S. DEP’T OF EDUC. PROPOSED TITLE IX REGULATION FACT SHEET 1 (2018), available at https://www2. ed.gov/about/offices/list/ocr/docs/proposed-title-ix-regulation-fact-sheet.pdf.

3. TITLE IX OF THE EDUC. AMENDMENTS OF 1972, U.S. DEP’T OF EDUC. 18 (2018), available at https://www2. ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf.

4. Sarah Brown and Katherine Mangan, What You Need to Know About the Proposed Title IX Regulations, CHRON. OF HIGHER EDUC. (Nov. 16, 2018), available at www.chronicle.com/article/What-You-Need-to-Know-About/245118.

5. TITLE IX OF THE EDUC. AMENDMENTS OF 1972, U.S. DEP’T OF EDUC. 27 (2018), available at https://www2. ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf (quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648–49 (1999)).

6. U.S. DEP’T OF EDUC., supra note 1.

7. U.S. DEP’T OF EDUC., supra note 3, at 33.

8. Id. at 59.

9. Id. at 58.

10. Id. at 84–85; see id. at 38–39, 132–33 (discussing proposed regulations regarding “removing a respondent from the recipient’s education program or activity” during a sexual harassment investigation and reasoning for said removal, including but not limited to safety and risk concerns of the school community).

11. Stephanie Saul and Kate Taylor, Betsy DeVos Reverses Obama-era Policy on Campus Sexual Assault Investigations, N.Y. TIMES (Sept. 22, 2017), www.nytimes. com/2017/09/22/us/devos-colleges-sex-assault.html.

By Jarvis V. Hollingsworth and Melissa M. Mihalick

Recovery for Student Athletes’ Injuries in the Face of Sovereign Immunity:

A Hail Mary?

I

ncreased attention today focuses on sports-related injuries, including heat-related dangers, undiagnosed heart conditions, and concussion injuries. At the same time, continual new legislation places greater burdens on public school districts to proactively address student athletes’ health issues.

The convergence of this attention and legislation raises questions as to whether the increasing statutory obligations of public school districts may result in exposure to legal liability in connection with these injuries.

School District Liability Under Texas Law Texas public schools are immune from liability for claims relating to injuries to students that occur on campus or during school sponsored events, with a narrow exception relating to the operation of a motor vehicle.1 Likewise, school district

personnel have immunity for actions undertaken in the discharge of their official duties.2 Texas courts have routinely held that this immunity protects school districts and their employees from liability for state tort claims in cases involving student athletes’ sports-related injuries.3 In 2011, the Texas Legislature enacted two statutes requiring school districts to be proactive in addressing two significant health concerns for student athletes —cardiovascular health incidents and head injuries.

The first law requires automated external defibrillators (“AED”) in all Texas public school districts. The law specifically mandates that all public school districts have at least one AED at each campus and an AED readily available during any University Interscholastic League athletic competition held on the campus.4 School districts are required to develop safety procedures to follow in responding to a medical emergency involving cardiac arrest, including the proper use of an AED, and each campus must have at least one employee trained in the proper use of an AED.5 The second law is a comprehensive concussion law, which requires that school districts create a concussion oversight team. This team should establish a return-to-play protocol for all student athletes who have sustained a force or impact believed to have caused a concussion, in addition to statutory return-to-play criteria.6 The law requires that student athletes be immediately removed from athletic activity if they are believed to have sustained a concussion.7 A student athlete removed from athletic activity due to a suspected concussion may not be permitted to practice or compete again until: (i) the student has been evaluated by a treating physician; (ii) the student has completed all requirements of the return-to-play protocol necessary for the student to return to play; (iii) the treating physician has provided a written statement indicating it is safe for the student to return to play; and (iv) thehoustonlawyer.com

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the student and the student’s parent or guardian have signed a consent form indicating that they have been informed and consent to the student returning to play and understand the risk associated with the student returning to play.8 While the additional statutory obligations imposed on Texas public school districts to ensure the safety of student athletes may give parents additional peace of mind, they do not create an avenue for injured student athletes to recover damages for sports injuries under state law. Both statutes expressly state that the obligations created by the statute do not waive immunity from liability of a school district or its officers or employees, and they do not create an independent cause of action against a school district arising out of the injury or death of a student.9 An End-Around School District Immunity?

In the absence of the ability to recover under tort law for injuries sustained while participating in school sponsored athletic events, a line of case law is emerging under the Fourteenth Amendment to the United States Constitution.

State actors are not immune from liability for claims for violations of constitutional rights where the facts alleged establish a violation of a constitutional right that was clearly established at the time of the injury, and a reasonable person would have been aware that their actions violated that right.10 In Alt v. Shirey, a student athlete was involved in multiple “helmet-to-helmet” collisions during a football game.11 Despite clear visible indications that the player had suffered a significant injury and required medical attention, coaches continued to put the player into the game.12 At no time during the game was the player evaluated to determine whether he had sustained injuries and whether those injuries required medical attention.13 At the conclusion of the game, the player’s mother took him to the emergency room, where he was di28

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agnosed with a substantial closed head injury.14 As a result of this injury, the player suffered physical, emotional and cognitive injuries.15 The player sued the school district and several school district officials, alleging, in part, violations of his substantive due process rights under the Fourteenth Amendment to the United States Constitution, specifically his rights to human dignity and bodily integrity. The plaintiff in Alt also alleged that the school district was liable for his injuries under the “statecreated danger doctrine” of the Fourteenth Amendment.16 The court in Alt noted that substantive due process claims should be reserved for conduct by the government that “shocks the conscience,” “offends judicial notions of fairness,” or “offends human dignity.”17 In considering the school district’s motion to dismiss the player’s human dignity and bodily injury claims, the court found that the conduct of the school district officials in intentionally disregarding the player’s condition was so egregious that it shocked the conscience and rose to the level of a violation of the player’s right to human dignity and bodily integrity sufficient to support the denial of the school district’s motion to dismiss.18 In considering whether the player’s claim was appropriate under the “statecreated danger” doctrine, the court looked at whether a state actor played a part in the creation of a danger faced by a private person or whether state action made a person more vulnerable to danger.19 A state-created danger claim requires proof that “(i) the harm ultimately caused was foreseeable and fairly direct; (ii) the state actor acted with a degree of culpability that shocks the conscience; (iii) a relationship exists between the state and the plaintiff such that the plaintiff was a foreseeable victim of the state’s actions; and (iv) a state actor affirmatively used his or her authority in a way that created danger to the individual or that rendered the individual more vulnerable to

the danger than had the state actor not acted at all.”20 The court in Alt held that the school district officials observed the player’s injuries as well as his unusual conduct after the injuries, and had ample opportunity to evaluate the player’s condition to discover the injury, but failed to do so.21 The court held this evidence was sufficient to establish that school district officials acted with deliberate indifference to a substantial risk of harm to the player and denied the school district’s motion to dismiss the player’s claims.22 Texas courts have not yet considered whether to extend the bodily integrity theory to the public school athletics context. A similar argument was attempted in a 1995 Texas case, although not in the context of school athletics.

In Young v. Austin ISD, a student sued the school district, alleging that she was injured at school in violation of her Fourteenth Amendment rights when she was sexually assaulted on campus.23 The court acknowledged that the Fifth Circuit previously held that the right to be free of “state-occasioned damage to a person’s bodily integrity” was protected under the Fourteenth Amendment but ultimately determined that the student would be required to prove that the school district acted with deliberate indifference with regard to the constitutional rights of its students and that such action was the cause in fact of the deprivation of rights inflicted on the student.24 Deliberate indifference requires proof that an unusually serious risk of harm of which the school district was actually aware (or willfully blind) existed, and the school district failed to take obvious steps to address the risk.25 The court in Young ultimately declined to extend the state-created danger doctrine on the grounds that the school district’s conduct did not rise to the level of deliberate indifference.26 Conclusion While the foregoing case law presents an interesting approach to legal liabil-

ity for the injuries of student athletes, there is currently no precedent for the application of the Fourteenth Amendment to school sports injuries in the Fifth Circuit. However, that may change soon. A case is currently pending in the Southern District of Texas in which the family of a Texas high school student athlete has sued the school district and its employees for violations of the student athlete’s Fourteenth Amendment rights in connection with sports-related injuries.

Jarvis V. Hollingsworth is a partner and head of the Education Law practice group at Bracewell LLP. He is a former member of the firm’s Management Committee.

Melissa M. Mihalick is counsel in the Bracewell LLP Education Law practice group.

Endnotes

1. TEX. CIV. PRAC. & REM. CODE §101.021; Garza v. Edinburg Consolidated Indep. Sch. Dist., 576 S.W.2d 916 (Tex. Civ. App.—Corpus Christi

1979, no writ).

2. TEX. CIV. PRAC. & REM. CODE §101.106(f).

3. See, e.g., Stout v. Grand Prairie Indep. Sch. Dist., 733 S.W.2d 290 (Tex. App.—Dallas 1987, writ ref. n.r.e.).

4. TEX. EDUC. CODE §38.017 (a) 5. Id. at §§38.018(a), 38.017(d) 6. Id. at §38.153-154, 158.

7. Id. at §38.156.

8. Id. at § 38.157(a).

9. Id. at §§38.017(f), 38.159.

10. Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009).

11. Alt v. Shirey, No. 11-0468; 2012 WL 726579 (W.D. Penn. 2012).

12. Id. at *2.

13. Id. 14. Id. at *3.

15. Id. 16. Id. 17. Id. at *7.

18. Id. at *8.

19. Alt, 2102 WL 726579 at *10; see also Young v.

Austin Indep. Sch. Dist., 885 F.Supp. 972, 978 (W.D. Tex. 1995).

20. Alt, 2012 WL 726579 at *10.

21. Id. 22. Id. 23. Young, 885 F.Supp. 972.

24. Id., citing Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir.1994), and Leffall v. Dallas Indep.

Sch. Dist., 28 F.3d 521 (5th Cir. 1994).

25. Id. 26. Young, 885 F.Supp. at 978, citing Leffall, 28 F.3d at 51.

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By Randall O. Sorrels and By Susan H. Michelle A. Soto, CiolekM.Ed., J.D.

The Ugly Business of Bullying

S

tar-crossed lover Juliet has argued for centuries that Romeo’s family name has nothing to do with their forbidden young love when she says, “What’s in a name? That which we call a rose by any other name would smell as sweet.” The same holds true for bullying, whether or not the “bullying” label is used to describe the offensive, hurtful behavior between students that has become all too common in our children’s schools. The behavior of bullying stinks in any form or fashion and has escalated way beyond the “kids being kids” teasing to which many of us were subjected when we were younger.

Nationally, one out of every five students (20.8%) reported being bullied in 2016.1 In Texas, the rate is nearly the same, with 19% of Texas students surveyed reporting that they had been bullied at least one time at school in the last 12 months.2 Almost 14% of students in Texas reported that they had been electronically bullied within the same period of time.3 From the adults’ perspective, 70% of school staff have reported seeing bullying, with 41% witnessing it once a week or more.4 Much of the bullying in middle schools occurs in the classroom,

hallways, or locker areas, with slightly lower occurrence in the cafeteria or gymnasium/physical education class.5 Students report that they are most often bullied because of their physical appearance, race or ethnicity, gender, disability, religion, or sexual orientation.6 Sadly, not even half of the students who are bullied ever alert an adult or ask for help.7 In 2017, Texas Governor Greg Abbott signed into law Senate Bill 179, commonly known as David’s Law. The law honors the memory of 16-year-old David Molak, a student in the Alamo Heights Independent School District in San Antonio.

Molak committed suicide after insults on social media escalated to serious threats and frighteningly profane messages.8 The law addresses harassment, bullying, and cyberbullying; increases the criminal penalty for such acts; and provides a new civil remedy for victims of bullying.

Has the problem of bullying become so bad that the Texas Legislature had to take action? Absolutely! Suicide is the second leading cause of death for children in America between the ages of 10 and 24.9 Bullying victims are often pushed to the point that they see no option other than suicide or self-harm; are more likely than other students to report high levels of suicide-related behavior;10 and are at an increased risk for maladjustment at school, difficulty sleeping, anxiety, and depression.11 Chapter 37 of the Texas Education Code, entitled “Discipline; Law and Order,” addresses student discipline management, security and law enforcement, and other related matters in Texas public schools.12 Formerly left to individual school districts to define, the statutory definition of bullying is provided in § 37.0832(a): (1) “Bullying”: (A) means a single significant act or a pattern of acts by one or more students directed at another student that exploits an imbalance of power and involves engaging in written or verbal expression, expression through electronic means, or physical conduct that

satisfies the applicability requirements provided by Subsection (a-1), and that: (i) has the effect or will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property; (ii) is sufficiently severe, persistent, or pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student; (iii) materially and substantially disrupts the educational process or the orderly operation of a classroom or school; or (iv) infringes on the rights of the victim at school; and (B) includes cyberbullying.13 Cyberbullying is a relatively new term for the new millennium and awareness has risen with parents, educators, and the general community. Also defined by the Texas Legislature, in the context of school law, “‘cyberbullying’ means bullying that is done through the use of any electronic communication device, including through the use of a cellular or other type of telephone, a computer, a camera, electronic mail, instant messaging, text messaging, a social media application, an Internet website, or any other Internetbased communication tool.”14 There is hope for bullying victims in the Texas Education Code, since the law applies to bullying that occurs on school property, on the school bus, at a school-sponsored event, and off of school property completely—in person or via electronic means.15 School district boards of trustees are mandated to adopt policy that prohibits bullying, establish procedures for reporting bullying, and address counseling options and other interventions for bullies, bullying victims, and witnesses.16 So, why has bullying not been reduced or eliminated? Parents and students who have attempted to report bullying, but have not received assistance or results

tation: dates, names, photographs of inwill tell you: the reporter is not the party juries or damaged items, feedback from who determines that bullying has octhe student victim himself or herself, curred—only a school official has that attendance records (if power and authority. the victim has a sudden School board policy increase in absences due on bullying is found to the bullying and its in Section F of the loeffects), to whom and cal school board policy when previous incidents manual under Policy of bullying were reFFI in most Texas public ported, etc. Parents will school districts. Genermost likely need to assist ally, FFI provides that a school district personnel school principal or desin recognizing that a statignee will conduct an utorily-mandated “iminvestigation into the albalance of power” exists legations of bullying and Nationally, and that either the studetermine whether or one out of every dent or his or her propnot bullying occurred. erty has been harmed; Therein lies the problem five students (20.8%) or the student is in fear from the parent or victim reported being of harm; or the bullying student’s perspective— has negatively impacted school administrators are bullied in 2016. the student’s educafrequently reluctant to tional environment. It use the label “bullying” In Texas, the may take multiple reor “cyberbullying” and rate is nearly ports and persistent efprovide families with forts before the problem the benefits contained in the same, with is addressed. Therefore, FFI, which include inter19% of Texas parents should not be im measures to protect discouraged and should the victim, a written restudents surveyed press on with their efport of the investigation, forts to secure relief for and disciplinary and correporting that their children. rective actions to address they had been Teens who are bullied the bullying conduct. are advised to share their However, parents may bullied at least concerns with a parent be partly to blame in this one time at or other trusted adult “justice desert,” because at the onset of bullying they often try to report school in the behavior. Many schools and resolve bullying of implement a confidential their children informallast 12 months. reporting system so that ly—that is, via meetings, victims have a sense of safety from bulemails, or telephone calls, rather than by lies’ retaliation, but if that is not available specifically invoking Policy FFI and trigto a student, the student is encouraged to gering the school’s duties therein. seek out adults who will help them report Parents of younger children who are bullying to the proper school authorities. bullied are advised to educate themselves An internet post by Delete Cyberbullying, on their school districts’ policies and proa project dedicated to educating parents cedures, then use them as vehicles to adand students on cyberbullying, suggests dress concerns about bullying or cyberthese tips for victims: try to avoid rebullying. When trying to prove to school sponding to minor teasing, keep a record district staff that bullying has occurred, of the bullying that has occurred, block it is helpful to have thorough documen-

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calls and messages from the bully or otherwise stop communication, and report cyberbullying to the website or social media outlet’s safety center.17 Teachers may feel helpless when they observe bullying or have not been trained in ways to reduce or address bullying.

While schools and school districts are encouraged to include bullying prevention, identification, response, and reporting in staff development activities, the topic is often passed over in favor of more pressing training session agenda items.

Teachers who wish to take action may find success in helping students learn to work together to stand up to bullies, encouraging students to reach out to peers who have been excluded from an activity, celebrating acts of kindness, and making sure that parents know whom to contact should they have a concern about their child being bullied.18 The final act in the fight against bullying has not been written—the battle is a work in progress. Lawmakers have stepped up to officially define and address

bullying, public awareness of the bullying epidemic and its effects on children is increasing, and many good teachers and administrators continue to do what they can each day to reduce and resolve bullying in our schools. To be valiant is to stand still, Shakespeare taught us, and it is imperative for our lawmakers, educators, and parents to link arms and stand firm against the ugly business of bullying—one child at a time, for every child in Texas public schools.

Susan H. Soto is a former teacher and principal in Texas public schools who represents teachers, students, and parents (pre-kindergarten to post-graduate) in school law matters across the State of Texas.

Endnotes

1. U.S. Dept. of Educ., U.S. Dept. of Justice Office of Justice Programs, National Center for Education Statistics, Indicators of School Crime and Safety: 2016, https://nces. ed.gov/pubs2017/2017064.pdf.

2. Texas State University, Texas School Safety Center, txssc.txstate.edu/topics/bullying/.

3. Id. 4. U.S. Dept. of Health and Human Services, stopbul-

lying.gov, www.stopbullying.gov/media/facts/index. html#stats.

5. Id. 6. U.S. Dept. of Educ., U.S. Dept. of Justice Office of Justice Programs, National Center for Education Statistics, Indicators of School Crime and Safety: 2016, https://nces.ed.gov/pubs2017/2017064.pdf.

7. Id. 8. Peggy Fikac, Texas Senate unanimously passes ‘David’s Law’ to help defend young people against cyberbullying, SAN ANTONIO EXPRESS-NEWS, May 4, 2017, www. mysanantonio.com/news/local/article/Texas-Senateunanimously-passes-David-s-11119089.php.

9. Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, 10 Leading Causes of Death by Age Group, United States – 2016, www.cdc.gov/injury/images/lc-charts/leading_ causes_of_death_age_group_2016_1056w814h.gif.

10. Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, The Relationship Between Bullying and Suicide: What We Know and What it Means for Schools, www.cdc.gov/ violenceprevention/pdf/bullying-suicide-translationfinal-a.pdf.

11. Centers for Disease Control and Prevention, National CenterforInjuryPreventionandControl,PreventingBullying, www.cdc.gov/violenceprevention/pdf/bullyingfactsheet508.pdf.

12. Tex. Educ. Code Ann. Ch. 37.

13. Id. § 37.0832(a)(1).

14. Id. § 37.0832(a)(2).

15. Id. § 37.0832(a-1).

16. Id. § 37.0832(c).

17. Delete Cyberbullying, http://endcyberbullying.net/ what-to-do-if-youre-a-victim/.

18. Michelle Chappell, Bullying Prevention: What Schools and Parents Can Do, available at www.nasponline. org/assets/documents/Research%20and%20Policy/ Advocacy%20Resources/Psychological%20Services/ psychedupbully.pdf.

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COLO 4C

By The Hon. Charles Spain

AWAY FROM THE PATIENT,” will get your undivided attention.

It all turned out okay. The troop chaplain was transported to the hospital and now sports an implantable cardioverter defibrillator (ICD), seemingly none the worse for the experience. But had my friend been someplace else, the odds are fairly overwhelming that he would have died. Who knew that judicial investitures save lives?

Being prepared makes all the difference. Knowing CPR, having an AED, knowing where it is and how to use it, calling 9-1-1, make all the difference.

Most of all, deciding to take action makes all the difference.

One thanks people at an investiture. I especially thank Houston assistant city attorney Derek Bauman, troop committeenth Court trained in CPR and AED tee chair Susan Ballard, Fourteenth Court (automated external defibrillator) use restaff attorney Nick Pavlov, state senator trieved an AED. The clerk of the court (a Leticia Van de Putte (ret.), clerk Chris Prine, Rev. Lisa Hunt, and the Scouts of Palmer Memorial Episcopal Church’s Troop 511 for both being prepared and taking action. Because of them and because Harris County placed AEDs in the courthouse Justice Charles Spain with Scouts from Troop 511 at his investiture. and the First and lawyer) called 9-1-1. A state senator who Fourteenth Courts of Appeals conducted is a pharmacist went to assist. A fellow CPR/AED training, Rev. John Price is alive priest prayed and spoke directly to the and still makes horrible puns that make chaplain while others tended to his body. me groan—he has informed me that the Older Scouts helped by clearing the area worst part of all this is that he can no lonwhile CPR was performed and the AED ger tell a lie as he has been defibbed. was connected.

See that AEDs are available in places All of this happened rapidly and withwhere you work or volunteer. Know the out overt coordination. These people were location of those AEDs. Get trained in trained and knew what to do. They were Basic First Aid/CPR/AED and encourage prepared. Many in the courtroom didn’t others to do so. Have a plan. initially understand what was happenBe prepared. For any old thing. ing. But if you, like me, have had CPR/ AED training, the sound of the AED inThe Honorable Charles Spain is a Jusstructing “PREPARING SHOCK—MOVE tice on the Fourteenth Court of Appeals.

Be Prepared:

A Scout Troop, Lawyers, a Priest and a State Senator Save a Life at Judicial Investiture

U

pon hearing the Scout motto, “Be Prepared,” someone asked Scouting founder Robert Baden-Powell the inevitable follow-up question.

“Prepared for what?”

“Why, for any old thing,” he replied.

And that is what happened at my investiture as a justice on the Fourteenth Court of Appeals. As an Eagle Scout and the current Scoutmaster of my son’s Scouts BSA troop, I asked the Scouts to participate in my investiture by carrying the United States and Texas flags and leading the pledges. The customary formalities followed—introductions and testimonials on how I’d likely work out okay in my new job, all leading up to the ceremonial administration of the oath of office.

But that afternoon in the grand 1910 Harris County Courthouse didn’t follow the program. Our troop chaplain, sitting in a back row, had a cardiac arrest, quietly, except for the sound of his foot falling.

Any old thing, indeed.

A lawyer sitting in front of him turned around, recognized something was wrong, and immediately assisted. The Scout troop’s committee chair, who is trained in CPR (cardiopulmonary resuscitation), noticed the unusual situation and went to help. A staff lawyer for the Four-

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By Christopher L. Tritico

By Randall O. Sorrels and Michelle A. Ciolek

Disruption:

Social Media’s Negative Impact on Education

T

he invention of the internet was heralded as the newest way to streamline and make all of our lives better and easier. In the world of education, it has in some ways proven a mine field. The pathway to improving education through use of the internet has been overshadowed by the negative impact social media has played on the education system.

Can I just have one picture... Please?

One of the most prominent issues educators face is the trading of nude or pornographic photographs over messaging software and apps like Snapchat™. In most circumstances, the photographs are between kids in a dating relationship. If the child depicted is under the age of 18 and nude, it is a crime for the boyfriend 34

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or girlfriend to send, receive, possess or view it. Just possessing a nude image of a minor in Texas is a third-degree felony, carrying a punishment range of two to ten years in prison and/or up to a $10,000.00 fine.1 Other crimes involving the transmission of explicit photos may carry more severe penalties. Many prosecutors believe these penalties are too severe for kids, and hence may choose not to prosecute these crimes.

Initially, all of the crimes associated with a boyfriend and girlfriend trading explicit photos of themselves, upon conviction (including deferred adjudication), required that they register as a sex offender.2,3 Fortunately, the Legislature carved out a Class C Misdemeanor exception, to remove the stigma of the sex offender registration and the felony conviction merely because a hormonal teenager sent a picture to a boyfriend or girlfriend.4 However, this carve out will not apply to the kid who sends his girlfriend’s picture to his friends or sells it on the internet. That individual has engaged in the transmittal of child pornography known as the promotion or possession with intent to promote and may be charged with a second- or first-degree felony.5 The courts are even less lenient with an adult teacher or predator who coerces kids to send them pictures.

The Teacher/Student Sexual Revolution In the 30 years that I have represented teachers, I have never seen anything like the explosion of criminal cases of teacher-student sexual relationships. When I started in the representation of teachers, I had one or two sex cases and up to 10 or 15 physical abuse cases per year to handle.

Today, the numbers have reversed. School districts, parents and administrators are grappling for answers.

When I was growing up, if I ever saw my teachers away from school, it was at the grocery store, and I was with my mom. We had one phone and, if the teacher called, my mom answered. Cell phones, computers and the internet were for authors like George Orwell. In other words, a teacher who wanted to have a relationship with a student had no real access to the student outside of school. That is why the cases of teacher-student relationships were largely limited to those teachers who had greater access to the kids, like coaches and club sponsors.

With wide-spread online access, a teacher who wants a relationship with a minor student now has 24/7 access to the student, with complete anonymity. The relationship grows without the constraints of parental supervision or the watchful eye of the school. Social media has taken the open and obvious into the dark recesses of the internet. Many parents allow their children to use their devices at all hours unsupervised. Think of the internet like Hermann Park: How many parents would take their children to Hermann Park, drop them off, and leave them for hours unsupervised?

We all know that there could be predators at the park. The internet is no different. Predators seek out school children on home computers and personal devices.

Previously, a parent or school personnel could intervene if they observed a teacher spending an inordinate amount of time with a student. The internet has circumvented this safety net. Now a relationship can develop through messaging apps, which makes the detection of face to face meeting by teacher and student almost impossible.

In the post internet world, detection of these

face to face meetings are generally the result of one of the following occurrences: A. The Kid Tells Someone. The kid is proud of the relationship – often a boy in a relationship with a female teacher who wants to brag. The other is the kid who is embarrassed and tells a friend, who tells an adult. This is often a girl having a relationship with a male or female teacher.

B. Pictures Get Out. For reasons I cannot figure out, there are times when teachers, who are adults that know they are violating the law, take compromising pictures and send them to the child with whom they are having the relationship. They are later stunned when the CHILD had the audacity to send them out and show them off.

C. Texting and Emailing. When a teacher and student send thousands of text messages to each other over a short period of time, they will get exposed.

This happens in almost every case.

D. The Teacher Gets Reckless. Often the teacher gets reckless in the way they are handling the relationship. They may give the student rides or do favors that they do not do for other students.

The teacher drops their guard and goes out in public with the student.

When an allegation of inappropriate conduct is made, a whirlwind of activity begins. Here is the usual process: Immediately upon an accusation being made, the teacher is suspended. This is the policy at every school district. While many teachers feel this is punitive, it is the most efficient way to ensure the safety of both the accused and the alleged victim. From the district’s point of view, if the teacher is truly a predator, removal is the only way to ensure the safety of children and prevent civil liability. On the other hand, if the student lied, it is better for the teacher to be away while the investigation is conducted.

During this period the teacher is reassigned with pay pending the investigation.

The Texas Education Code provides that a teacher may be suspended without pay pending discharge or in lieu of discharge up to the end of the current contract.6 The

teacher is entitled to a due process hearing on the suspension without pay.7 Simultaneously, the district may begin proceedings to terminate the teacher’s contract.

The type of proceeding depends on the district, its policies and the type of contracts it gives. Texas has three types of contracts for teachers—Probationary,8 Term9 and Continuing,10 with stronger protection for the teacher as you move up the chain.

Generally, the district waits until the police make a charging decision to determine if they are going to move forward with termination. During the district investigation, the district is legally entitled to have the teacher give them a statement.

This is a real quandary for the teacher and gives headaches to criminal defense lawyers. The district claims, and they are legally correct, that they are conducting an administrative investigation solely for employment purposes and their investigation is separate from the criminal investigation.

If the employee refuses to answer the district’s questions, they can be fired for refusing to answer. However, if they answer, those answers can be used against them in the criminal prosecution. It is a very big problem.

The US Supreme Court, in Garrity vs.

New Jersey, stepped in and carved out an exception for government employees placed in this quandary.11 When faced with losing your job in favor of maintaining your right to remain silent, an employee may invoke the protections afforded in the Garrity decision. Then, they are free to answer the employer’s questions and also invoke their Fifth Amendment Privilege in any other forum. That is, police and prosecutors cannot use and/or read these statements given to the employer.

There are a myriad of crimes teachers can be charged with for their interaction with kids. Here are the most common charges that are filed: A. Aggravated Sexual Assault of a Child.12 This is a first-degree felony with a punishment range of five years to life.

If it is charged as a continuous aggravated sexual assault, the minimum punishment is 25 years and up to a

$10,000.00 fine. A conviction, including deferred adjudication, carries sex offender registration for life.

B. Sexual Assault of a Child Under 17.13 This is a first-degree felony, a conviction which carries sex offender registration for life.

C. Indecency with a Child.14 Indecency does not require penetration, just sexual contact. It is a second-degree felony, carrying a punishment of two to ten years and/or up to a $10,000.00 fine. A conviction carries sex offender registration.

D. Improper Relationship between Educator and Student. This is a second-degree felony. Sex offender registration depends on the underlying offense.

In these cases, the sexual relationship may not have been a crime but for the teacher-student relationship; in that instance there would be no sex offender registration requirement.

The internet, social media, and communication apps have radically changed the way we do business, shop, talk, and interact. The down side of these changes is that parenting, education, and law enforcement have not caught up. We must continually explore how we as a society deal with the growing problem of the teacher-student relationships that the internet and social media have allowed to foster.

Christopher L. Tritico practiced law for six years before becoming a founding partner of his own practice, Tritico Rainey, PLLC. He is an active civil and criminal litigator and media consultant, but also often represents teachers and students in school law issues.

Endnotes

5. Tex. Penal Code § 43.26(a) (2018).

6. See generally Chap. 62 Tex. Code Crim. Pro. (2018).

7. See Art. 42A.101 Tex. Code Crim. Pro. (2018).

8. Tex. Penal Code § 43.261(b)(1) (2018).

9. Id. § 43.26(e).

10. Tex. Ed. Code § 21.104 (2018).

11. Id. § 21.211.

12. Id. § 21.102 et. seq.

13. Id. § 21.204 et. seq.

14. Id. § 21.152 et. seq.

15. See Garrity vs. New Jersey, 385 U.S. 493 (1967); Spevack vs.

Klein, 385 U.S. 511 (1967).

16. Tex. Pen. Code § 22.021(a)(2)(B) (2018).

17. Id. § 22.011(a)(2).

18. Id. § 22.11(a)(1).

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Foundation Honors Longtime Executive Director, Presents Awards for Outstanding Volunteer Service Travis Torrence Takes Office as 2019 Houston Bar Foundation Chair

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he Houston Bar Foundation honored Kay Sim on the occasion of her retirement from the HBA after more than four decades of service to the bar and the people of Houston at its Annual Luncheon on February 14th at the Mariott Marquis. Sim joined the HBA in 1975 and was named executive director in 1981. She became secretary of the Foundation in 1982. Throughout the years, she built many of the association’s most enduring public service and community education programs, including the Juvenile Justice Mock Trial Program, LegalLine, the Juvenile Consequences Partnership, the Interprofessional Drug Education (IDEA) Program, and the Veterans Legal Initiative.

James B. Sales, who served as president of the HBA the year that Sim became executive director, delivered a moving tribute to her myriad contributions to the bar and the community. “By her extraordinary devotion to duty, by her passion, and by her irrepressible spirit, she has engendered an abiding sense of pride, vigor, and achievement within our Bar,” said Sales. “Kay has been the unflinching inspirational force propelling the enormous growth and prosperity of the Houston Bar and this Foundation.”

Travis Torrence of Shell Oil Company took office as 2019 chair of the Houston Bar Foundation, succeeding Barrett Reasoner of Gibbs & Bruns LLP. Charles A. “Chip” Casey of ExxonMobil Corporation is vice-chair, and TomGodbold of Twin Eagle Resource Management, LLC, serves as treasurer. Serving as directors are Susan L. Bickley of Blank Rome LLP; Polly Fohn of Haynes and Boone, LLP; Jim Hart of Williams Hart Boundas LLP; Greg Heath of Locke Lord LLP; Neil Kelly of Hunton Andrews Kurth LLP; Richard Mithoff of Mithoff Law Firm; Jason Ryan of CenterPoint Energy, Inc.; and Denise Scofield of Winston & Strawn LLP. Reasoner will serve on the board as immediate past chair, and Warren Harris of Bracewell LLP, HBA president, serves ex officio.

Keynote speaker Whitney Mercilus, outside linebacker for the Houston Texans, talked about the inspiration behind his foundation, WithMerci, that serves the families of children with special needs.

Awards were presented for outstanding contributions to the Houston Volunteer Lawyers (HVL), which provides pro bono legal services to low-income Harris County residents; for volunteer service to the Dispute Resolution Center, providing free alternatives to formal litigation; and for legal writing in the HBA’s professional journal, The Houston Lawyer.

Photos by Debi Wallace, Barfield Photography.

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Travis Torrence, 2019 Chair of the Houston Bar Foundation.

State Bar of Texas Executive Director Trey Apffel presented Kay Sim with a proclamation for her years of service, joined

by State Bar of Texas Board Chair Laura Gibson and State Bar President-elect Randall O. Sorrels.

Travis Torrence, Whitney Mercilus and 2018 Foundation Chair Barrett Reasoner.

Keri Brown accepted the award for Outstanding Contribution to HVL by a Large Firm on behalf of Barrett Reasoner presents the James B. Sales Pro Baker Botts L.L.P. Bono Leadership Award to Texas Supreme Court Justice Eva M. Guzman for her lifetime of leadership in ensuring equal access to justice for all Texans.

City Attorney Ron Lewis, a former chair of the Houston Bar Foundation, presented Kay Sim with a proclamation declaring February 14, 2019 as “Kay Sim Day in Houston.�

Susan Oehl, Lynn Kamin and Aaron Reimer accepted the award on behalf of Jenkins & Kamin LLP for Outstanding Contribution to HVL by a Small Firm.

Susan Bickley and Barry Abrams accepted the award on behalf of Blank Rome LLP for Outstanding Contribution to HVL by a Mid-size Firm.

J. Thomas Black was honored for Outstanding Contribution to HVL by a Solo Practitioner.

Christie Cardon of King & Spalding was honored Bryn Poland of Mayo & Poland was honored for for Outstanding Contribution to HVL by a Pro Hector Pineda, Christina Welch and Michael Barton Outstanding Contribution to HVL by an Individual. Bono Coordinator. accepted the award on behalf of Shell Oil Company for Outstanding Contribution to HVL by a Corporate Law Department.

Dustin Rynders of Disability Rights Texas was Susan Rokes was honored for Outstanding James Montgomery was honored for Longevity of honored as the author of the outstanding legal Volunteer Service to the Dispute Resolution Center. Exemplary Service to the Dispute Resolution Center. article published in The Houston Lawyer. thehoustonlawyer.com

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34th John J. Eikenburg Law Week Fun Run Benefits The Center

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he HBA John J. Eikenburg Law Week Fun Run on February 16 benefited The Center, a nonprofit agency that provides opportunities that promote individual choice, personal growth and community involvement for persons with developmental disabilities so they may reach their maximum potential. The event netted over $68,000 for The Center, bringing contributions over the life of the race to $1,481,099.

More than 600 runners and walkers participated in the event in

Runners prepare to start the 8K race.

HBA President Warren Harris with Fun Co-chairs Sara Keith, Steven Howard and Alicia Castro.

Members of the Eikenburg family attended to support the race, named after the late John J. Eikeburg, who started the event as president of the HBA in 1985-1986.

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downtown’s Sam Houston Park.

Named for the HBA president who founded the race in 1985, the John J. Eikenburg Law Week Fun Run is truly a team effort that involves many months of planning and coordination. Special thanks to race directors Alicia Castro, Steven Howard and Sara Keith.

Photos by Anthony Rathbun Photography

First place overall male runner, Richard Powell, and first place overall female runner, Lauren Stroud.

Vinson & Elkins took home the President’s Trophy for fastest law firm team. Runners Dan Henderson, Michael Marek and Derrik Sweeney are shown with Fun Run Co-chair Steven Howard, left, and HBA President Warren Harris, right.

Kids take off for the 1K Children’s Run.

HBA President Warren Harris with longtime emcee, radio personality Lee Jolly.

Constable Alan Rosen of Precinct 1 helps give out door prizes. Precinct 1 co-sponsored and provided security for the race.

HBA Fun Run Sponsors Gold Sponsor Anne & Don Fizer Foundation Archer Solutions Exxon Mobil Koons Fuller Locke Lord LLP Marc Whitehead & Associates,

Attorneys at Law LLP Matthews & Associates Norton Rose Fulbright US LLP Susman Godfrey LLP Vinson & Elkins LLP Silver Sponsor Amicus Search Group Andrews Myers Armstrong Lee Savage LLP Baker Botts LLP Baker Hostetler Beck Redden LLP Benjamin Roberts Bracewell LLP BRG BWA Video, Inc. Fullenweider Wilhite, P.C. Germer PLLC Haynes and Boone, LLP HBA Family Law Section HBA Real Estate Section Houston Bar Association Auxiliary Holland & Knight, LLP Holmes, Diggs & Sadler Irelan McDaniel PLLC Jenkins & Kamin, LLP Jim Adler P.C. Johnny and Tia Carter Johnson, Trent & Taylor, L.L.P. Judge Harvey Brown Judge Kyle Carter Ross Reporting Services, Inc. Sanders McGarvey Schlanger, Silver, Barg

& Paine, LLP Shearman & Sterling LLP Shook Hardy Bacon South Texas College of Law Houston Squire Patton Boggs (US) LLP Steven Howard Mediations Terry G. Fry P.C. The Law Office of Diane St. Yves Tindall England PC Veritas Research, L.P.

Wilson Elser Worldwide Court Reporters, Inc. Xact Data Discovery Friends of Fun Run Judge Mike Engelhart Travis Torrence & Heath LaPray Houston Lawyer Referral Service Supporters who have made the race possible include: 1100 Smith Garage The Art Institute of Houston Eddie Avila Blackhawk Security Bullpen Marketing The Center Artisan Crafts The Center Gingersnaps, Etc. The Coca-Cola Company Faust Distributing Company &

Bob Stokes Texas Outhouse Gulf Coast Regional Blood Center HARRA – Houston Area Road

Runners Association Iron Keel Strength Jack Rabbit/Run On James E. Brill, PC LD Systems PV Rentals Todd Lonergan Run Houston Timing RunSignUp Snobunnysnoballs Doug Teel Texas Yogini Turn Key Event Rental &

Design, Inc. Valeo PT massage therapists Washamerica Watermill Express Security Constable Alan Rosen and his staff

from Precinct 1 Master of Ceremonies Services donated by long-time

emcee, Lee Jolly Music Grand Old Grizzly

Residents of The Center, shown above with Assistant Chief Deputy Carl Shaw, left, and Angelique Meyers of Precinct One, supported the race by participating in the family walk.

To view complete race results and more photos, visit www.hba.org/committees/ hba-john-j-eikenburgfun-run/

OFF THE RECORD

David Gerger:

Songs for Our Times

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The Houston Lawyer

By Paul Nugent

avid Gerger has found a rhyme and a melody in some of the biggest white-collar criminal cases in the United States. He admits his songs are not for everyone; if you have a thin skin for politics, you may want to avoid David’s music.

The musically-inclined Houston lawyer has cut two albums with his daughter Ria, a health care consultant. The second one is due to release in early 2019. There are songs about family and philosophical thoughts. But also, there are songs about Enron, the Deepwater Horizon oil spill, a Foreign Corrupt Practices Act trial in New Jersey, and death row exonerees.

“I just write songs about experiences I’ve had or know about, and some of them are a bit silly,” says David, who practices at Gerger Khalil & Hennessy. David, by the way, knows about Enron because he defended Enron CFO Andy Fastow, and he knows about the Deepwater Horizon spill because he got one of the defendants acquitted.

The first CD is called “Ria & David: Give Me Mercy,” which includes tracks about wrongly convicted men sent to prison and personal songs that pay tribute to family members, including a son who died young. Some of the songs have a Texas twang, especially “Pipeline... From Your Heart to Mine.”

The most recent album, to be called “Deepwater Horizon,” has many interesting songs apropos for the current times. The second effort will also include the songs “Kerry Max Cook,” about a death row exoneree’s remarkable journey; “24 Hours,” inspired by a Gandhi poster he saw in his daughter’s college dorm room; and “New Pair of Shoes,” about a woman who left a guy for a new pair of shoes.

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And the song “Deepwater Horizon” is about the trial in which client Bob Kaluza was exonerated on all charges. Says Kaluza: “This is a very meaningful melody about the human toll” of the tragedy.

Unlike many big-name trial lawyers, David has a quiet manner. He’s an acoustic guitar player, but he played bass guitar in the 1970s in a Houston rock and roll cover band called Midstream. “We played the bar mitzvah circuit. Remember ‘Color My World,’ ‘Jumpin’ Jack Flash,’ ‘Smoke on the Water?’” David asked.

As an undergrad at Yale University, David sang in two a cappella groups: the Yale Glee Club and the Yale Russian Chorus. He and his wife Heidi, a native of Austria, love opera and classical music. When their kids were young, he sang “Puff the Magic Dragon” to them at bedtime.

David started composing, as a creative outlet. “I would just sit down and write songs. There was no purpose. It was kind of indulgent. They all just sat in a drawer,” David said. That was until 2016 when Ria, a standout tennis player, came home for ankle surgery. She suggested they collaborate on a record, and they made their first album in the studio of Texas music legend Rock Romano, known as Dr. Rockit. His Houston studio is called The Little Red Shack.

The result: You can now find their music on Amazon.com. “Sales have been terrible though,” Daivd said.

All of the proceeds from David’s and Ria’s CD sales will go to charities.

Paul Nugent is a Houston white-collar criminal lawyer who has known David Gerger for many years.

A Profile

in pro f e s s i o n a l i s m

Lynne Liberato Partner, Haynes and Boone, LLP

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here was not a dry eye in the stadium at the M.O. Campbell Educational Center as 2,204 people raised their right hands to be sworn in as new Americans. With the oath recited and hands lowered, I saw high fives, broad smiles and group hugs.

When Judge David Hittner asked me to give the address at this Naturalization Ceremony, which was held last December, he suggested that I include in my remarks a history of my family’s journey to the United States.

I told them of Sicilian fisherman Antonio Liberato, my great-grandfather who came from Castellammare to Pensacola, where opportunity—and fish—were plentiful. Ava Trachtenberg, an 8th grader at Emery Weiner School, would later lead us in the pledge of allegiance, which gave me the opportunity in my remarks to reflect upon the courage of her great-grandmother. Unlike her mother and sister, Leona Trachtenberg escaped death at the hands of Nazis by immigrating to the United States in 1938. Similarly, we learned from Judge Hittner that all four of his grandparents, including his namesake, fled oppression in Eastern Europe for the United States.

The new Americans in that stadium, who hailed from 116 countries, came to the United States for the same reasons our ancestors came—to share in the opportunities we enjoy and, in some cases, to escape oppression.

I wish each of you could have been there. The ceremony was a powerful reminder of the pledge we take when we become lawyers. We promise to conduct ourselves “with integrity and civility.” We pledge “to support the Constitutions of the United States and of this state.”

Our actions should always reflect that sacred oath and honor the unique responsibility we have as guardians of the Constitution. We owe it to Antonio, Leona, David and all the new citizens sworn in that day and every day. thehoustonlawyer.com

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committee spotlight

Campaign for the Homeless Committee:

Breaking Down Barriers

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The Houston Lawyer

By Colleen Migl

hen I was in my third year of law school, I starting down these barriers. ed volunteering for a clinic that was designed The HBA established the Campaign in the early 1990s after to help the homeless in the heart of Washinglistening to the needs of the homeless and realizing that helpton, D.C. It wasn’t fancy at all – a small, damp ing the impoverished does not stop at providing legal services. room, attached to the basement soup kitchen From 1996 to present, more than 365,982 articles of clothing of a nearby church. I learned a priceand diapers have been collected, and less lesson early on—a lawyer should more than $185,174 has been raised. always listen to his or her client, no Additionally, over the years, the commatter what. Many homeless find mittee has partnered with a plethora themselves, and their voice, lost in the of organizations, including AVANCE mix, ignored, or even rejected. Now, Houston, Inc., Career Gear Houston, don’t get me wrong, some of the stoCasa de Esperanza, Covenant House, ries I heard were downright bizarre, De George at Union Station, Dress but these homeless people are still for Success Houston, Emergency Aid people.

Coalition, The Harris Center, HousSo, when I moved back to Houston, ton Area Women’s Center, Lord of the it didn’t take me very long to seek out Streets, Nehemiah Center, No More an organization doing work to help Victims, Inc., Star of Hope Mission, Jason Beesinger and Collee Migl, co-chairs of the the homeless. I quickly came across Campaign for the Homeless Committee. and U.S. Vets at Midtown Terrace. the Houston Bar Association In addition to donating and its Campaign for the Hometime helping the homeless, comless Committee. In addition to mittee members assist with the the programs offering legal asHBA’s LegalLine hotline each sistance provided through the spring and stuff Christmas gift HBA’s pro bono legal aid arm, bags for veterans each winter.

Houston Volunteer Lawyers, the The committee’s co-chairs are HBA’s Campaign for the Homecurrently evaluating several opless Committee takes on the istions to formally expand the sues affecting the homeless such Campaign’s ongoing promise to as dressing for a job interview help the homeless community in and affording basic necessities. the spring.

Several years later, after being The committee thanks all of on the committee and taking on Members of the Campaign for the Homeless Committee and other the law firms, legal departments, co-chair responsibilities, my un- volunteers sort clothing during the fall clothing and diaper drive. and individuals for the continderstanding of the issues facing today’s homeless has grown. ued donations of clothes, diapers, monetary contributions and For one, it is a complex issue; there are many causes of homevaluable donations of time. lessness. Second, the homeless face so many challenges—and stigma. By partnering with organizations across the Houston Colleen Migl is a partner of Migl Law Firm, PLLC. She is the metropolitan area, such as Dress for Success, our committee of co-chair of the Houston Bar Association’s Campaign for the roughly 20 attorneys has time and time again aimed at breakHomeless Committee.

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SECTION spotlight

HBA Real Estate Section:

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More Than Dirt Lawyers

By Cassandra McGarvey

he Real Estate Section is committed to providing educational, service, and networking opportunities for Houston lawyers whose practices touch and concern real estate. While the Section includes many transactional attorneys handling lending and purchase and sale agreements, we also have attorneys involved with homeowners’ associations, leasing, title insurance, litigation, bankruptcy, development, and government regulation.

We are fortunate to have members in every segment of the real estate industry.

With such broad membership, the Section strives to provide educational opportunities for its members.

Each month, the Section meets at Locke Lord downtown for lunch and CLE. This location allows us to provide a subscription for the 10-lunch series for $175. Additionally, this year we have started a quarterly happy hour CLE. The happy hours have been held in the Rice Village area and provide additional opportunities to meet members of the Section.

This bar year we have featured speakers on property owners’ associations, disclosures in purchase and sale agreements, 1031 exchanges, and use of LinkedIn for marketing. Members who attend the programs receive CLE credit, get the opportunity to ask the speakers questions, and obtain information that can be immediately relevant to their practice.

The Section recognizes the importance of encouraging law students to become involved with the HBA and its sections.

As such, the Section lunches and happy hours are open to law students free of charge. Several students have taken advantage of the opportunity to attend and meet practicing attorneys.

The Section is also involved with other HBA activities. The Section annually makes a contribution to the Houston Bar Foundation for the Harvest Celebration, which funds critical legal services for disadvantaged Houstonians. Members also volunteer their time for LegalLine, providing a necessary resource to our lay community.

The Section is an underwriter of the John J. Eikenburg Law Week Fun Run, which benefits The Center. Lastly, the section provides scholarships each year to students at the three local law schools.

The Section is always looking to expand the services offered to its members. But, we need your input as to what you want for your practice. You can suggest speakers, topics, events, or even volunteer to speak. We welcome new members and are hoping to add more value to section membership. We look forward to seeing you at the next events. .

Cassandra McGarvey is a partner at Sanders McGarvey LLP, where she focuses on real estate litigation and general business matters. She is the chair of the HBA Real Estate Section. thehoustonlawyer.com

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LEGAL TRENDS

Discrete Differences Between Presenting Summary Judgment Evidence in State and Federal Courts in Texas

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The Houston Lawyer

By Jeremy W. Dunbar

enerally, the requirements for presenting summary judgment evidence are similar in state and federal courts in Texas. On April 27, 2018, in Lujan v. Navistar, Inc., the Texas Supreme Court further aligned state and federal evidentiary requirements by adopting the sham affidavit rule, which provides that “if a party submits an affidavit that conflicts with the affiant’s prior sworn testimony and does not provide a sufficient explanation for the conflict, a trial court may disregard the affidavit when deciding whether the party has raised a genuine fact issue to avoid summary judgment.”1 Federal courts have recognized the sham affidavit rule for nearly 50 years, but prior to Lujan, Texas state courts were split over whether to recognize it. In adopting the rule, the Lujan Court heavily relied on federal case law, emphasizing similarities between the state and federal summary judgment rules.

Importantly, however, the Court also acknowledged that discrete differences exist between presenting summary judgment evidence in state and federal courts. These differences can affect what evidence a court considers in disposing of a summary judgment motion, which in turn can affect the success of one’s lawsuit. They should therefore be considered when moving for or responding to a motion for summary judgment.

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judgment evidence must be presented differs between state and federal courts in Texas.

In state court, summary judgment evidence must be in admissible form as if presented at trial. In federal court, however, summary judgment evidence need not be in admissible form. The proponent of the evidence need only show that the evidence is capable of being presented in admissible form. In practice, the state court requirement precludes parties from relying on unauthenticated documents, while federal courts may consider evidence without requiring parties to authenticate everything in the record.

Another difference concerns the use of pleadings as summary judgment evidence.

In state court, parties may not generally rely on pleadings, even if sworn to, as summary judgment evidence. In federal court, verified pleadings will usually be treated as affidavits and are therefore acceptable. In both forums, judicial admissions made in pleadings, even if unsworn, may be used against the opposing party.

Also, hearings on summary judgment motions are usually more common in state court than in federal court. In state court, however, parties may not submit additional evidence, including oral testimony, during such hearings. Federal courts are much less restrained and may consider oral testimony during summary judgment hearings.

Finally, although the best practice in any court is to cite to the portions of summary judgment evidence that a proponent relies on, the Texas rules do not expressly require a party to do so. State courts have, on occasion, found that a trial court cannot disregard record evidence based on a proponent’s failure to bring it to the court’s attention. The federal rules, on the other hand, expressly require that a party cite to the particular parts of the summary judgment record that support their position. Federal courts are therefore not required to consider evidence that was not specifically brought to the court’s attention.

Overall, the civil practitioner in Texas should not assume that the rules governing the presentation of summary judgment

evidence are the same in state and federal court. While the sham affidavit rule is now recognized in both forums, differences in the requirements for presenting summary judgment evidence remain. Before presenting evidence in support of or in opposition to a motion for summary judgment, the civil practitioner in Texas should consider these differences in conjunction with the applicable rules of civil procedure, case law, local rules, and the specific court’s procedures.2 Jeremy W. Dunbar is an associate attorney at Bracewell LLP and a former law clerk to the Honorable David Hittner of the United States District Court for the Southern District of Texas.

Endnotes

1. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018).

2. For a detailed discussion of summary judgment practice in Texas state and federal courts, see Judge David Hittner & Lynne Liberato, Summary Judgments in Texas, 60 S. TEX. L. REV. 1 (2019).

U.S. Supreme Court Finds That Special Needs Children Deserve Challenging and Ambitious Educational Benefits

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By Anietie Akpan

he Individuals with Disabilities Act (hereinafter referred to as “IDEA”) offers States federal funding to assist in the education of children with disabilities.1 Congress’ purpose in providing federal funding to States is to ensure that every

LEGAL TRENDS

eligible special needs child receives a “free benefit [that is] merely... more than de miniappropriate public education” (hereinafter mus.”5 referred to as “FAPE”) by means of a uniquely After applying the Rowley standard to the tailored “individualized education program” facts in Endrew F.’s case, the Tenth Circuit (hereinafter referred to as “IEP”). concluded that Endrew’s IEP met its obligaThe United States Supreme Court recently tion under the IDEA, as it had been “reasonvisited the FAPE requirement in Endrew F. v. ably calculated to enable [him] to make some Douglas Cty. School Dist., 137 S.Ct. 988, 996 progress.”6 (2017), a case that extensively discussed how According to the Rowley Court, “approthe adequacy of a special needs child’s IEP priate” academic progress of a special needs should be measured. child would be reflected in an IEP calculated The Petitioner in this case, Endrew F., to enable the child to merely “achieve passing was a child with autism marks and advance from who received annual IEPs grade to grade.”7 The Row... the United from Respondent, Douglas ley Court further explained States Supreme Court County School District, that the IDEA simply guarpreserved an idea that from preschool through antees a substantively adeveryone can rally behind: equate program of educafourth grade. By fourth grade however, Endrew F.’s tion for special needs chila special needs child parents believed that both dren. This standard howdeserves an education his academic and functionever, is based in the context that is as challenging and al progress had stalled and of a special needs child ambitious as it would had brought the same to who is fully integrated into the school’s attention. a regular classroom. The be for any other child.

When presented with an Rowley Court provided no IEP for the fifth grade that did not address concrete guidance however, with respect to a their concerns, Endrew F.’s parents withdrew special needs child who may not be fully intehim from school. They subsequently enrolled grated into a regular classroom and not able him in private school, and filed a complaint to achieve on grade level. If the latter example with the Colorado Department of Education, were to arise, the Rowley Court concluded a seeking reimbursement for Endrew’s private special needs child’s IEP need not aim for school tuition. The claim was denied, and a grade-level advancement.

Federal District Court affirmed that denial.

In contrast, the Endrew F. Court held that Endrew F.’s parents appealed to the Tenth in order to meets it substantive obligations Circuit Court of Appeals, who also affirmed under the IDEA, an IEP must provide more Colorado’s denial. than a de minimus educational benefit, and To support their decision, the Tenth Circuit should be reasonably calculated to enable a referred to an earlier United States Supreme child to make progress that is appropriate in Court holding in Bd. of Education of Hendrick light of each child’s individual circumstancHudson Central School Dist., Westchester Cty. es. The Court further explained that a spev. Rowley which first described the standard cial needs child’s educational program must of education that a special needs child should be appropriately ambitious, and contends that 2 be afforded by his school. The Rowley Court the legislative intent of the IDEA could not have been to aim for grade-level advanceestablished that a child’s IEP need not “prom3 ment of special needs children who can be ise any particular level of benefit,” so long as educated in the regular classroom, but would it is “‘reasonably calculated’ to provide some 4 be satisfied with mere de minimis progress for benefit, as opposed to none.” In other words, special needs children who cannot. a special needs child’s IEP is adequate as long The Court concluded that Rowley’s generas it is calculated to confer an “educational

“

”

ic, minimum standard does little to uphold the legislative intent of the IDEA, which is to ensure that an IEP enables each special needs child to make progress in their course and pursue academic and functional advancement (not merely advance from one grade to the other as the Rowley Court described).

The Endrew F. Court came to this conclusion by reviewing the core purpose of an IEP as outlined by the IDEA. The Court emphasized that the instruction offered in an IEP must be specially designed to meet a child’s unique needs. The Court further explained that an IEP is not a standard form document, but rather, it is constructed after the careful consideration of the child’s levels of achievement, disability and potential for growth as discussed between school personnel, the parents, and at times the child himself.

An IEP, the Endrew F. Court concluded, must aim for a special needs child to make progress. A standard—as described in Rowley—that does not focus on student progress, would do little to remedy the tragic academic stagnation that Congress aimed to remedy when the IDEA was passed.

By vacating the Tenth Circuit’s holding, the United States Supreme Court preserved an idea that everyone can rally behind: a special needs child deserves an education that is as challenging and ambitious as it would be for any other child.

Anietie Akpan is a solo practitioner who practices education and estate planning law.

She is a member of The Houston Lawyer’s Editorial Board Endnotes

1. See generally, 20 U.S.C. §1400(c)(6)(2010) (explaining that, “[w]hile States, local educational agencies, and educational service agencies are primarily responsible for providing an education for all children with disabilities, it is in the national interest that the Federal Government have a supporting role in assisting State and local efforts to educate children with disabilities in order to improve results for such children and to ensure equal protection of the law.”)

2. Endrew F. v. Douglas Cty. School Dist., 137 S.Ct. 988, 994 (2017).

3. Id. at 997 (emphasis added).

4. Id. at 997−98 (emphasis added).

5. Id. at 997.

6. Id. 7. Id. at 999.

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March/April 2019

45

Media Reviews

Capital Cat and Watch Dog: At It Again in Washington, D.C.

By Janice Law (Author), Jason Eckhardt (Illustrator)

J

Reviewed by Kimberly A. Chojnacki

help of Cat-alog, they comb the Library for anice Law’s third installment of President Jefferson’s favorite hobbies and the adventurous duo of Capital interests in search of the missing lock.

Cat and Watch Dog, joined this Unbeknownst to them, another researcher time by Cat-alog from the Library had the hair all along and is able to surof Congress, tells the tale of a rereptitiously place it among a collection of freshingly welcome “hunt” in Washington, books replicating PresiD.C. In Capital Cat and dent Jefferson’s former liWatch Dog Hunt Thomas Capital Cat brary. Dog noses his way Jefferson’s Hair in the Licontinues to among the shelves and brary of Congress, the trio herald from the Senate, books to find the missing bands together to explore hair at last, returning it to the Library of Congress’ and Watch Dog its rightful place before extensive collections in guards the House the journalist’s tweet sees search of the missing sil(when he isn’t with the light of day. ver locks of our nation’s As with her first two third president and prinhis police officer). books chronicling Cat cipal author of the Declaand Dog’s adventures in Washington, this ration of Independence. one is a treasure. It is coupled with riveting Capital Cat continues to herald from the illustrations and charming rhymes. Before Senate, and Watch Dog guards the House you know it, you’ve traveled the best of (when he isn’t with his police officer). The Washington with Cat and Dog and learned newest member, Cat-alog, a bespectacled a fair bit of history in the process. (naturally!) cat who lives at the Library of Congress, possesses a fount of knowledge Kimberly A. Chojnacki is an associate of about the Library’s extensive collections Baker Donelson in Houston. She represents and history that is integral to solving Capcorporate clients in eminent domain proital Cat and Watch Dog’s mysterious quest. ceedings, complex commercial litigation, When a journalist threatens to “tweet to and insurance defense disputes. She is a the world” that the Library has misplaced member of The Houston Lawyer Editorial a lock of President Jefferson’s gray hair, Board.

Cat and Dog pounce into action. With the

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