An Administrator Legal Update

Valuable Lessons to be Learned from Recent Case Law

Laura Rodriguez McLean and Crystal M. Hernandez, Walsh Gallegos1

The law is in a constant state of evolution. School administrators need be aware of how the legal fundamentals they encounter day to day are being interpreted in decisions issued by courts and the Commissioner of Education. More importantly, they need to be able to distill practical guidance from those decisions. The purpose of this article is to highlight some recent cases, and distill the lessons to be learned from them.

Lesson #1 - A Chapter 21 contract teacher cannot be

suspended without pay without process.

Kristin Kenney, a middle school teacher on a probationary contract, appealed the Board’s decision to suspend her without pay prior to a hearing being conducted under Subchapter F of Chapter 21 of the Texas Education Code. By way of background, Kennedy was placed on administrative paid leave on January 13, 2022, following allegations of her making inflammatory remarks about students to her colleagues. On January 18, 2022, Kennedy notified the district that she was resigning effective at the end of the 2021-2022 school year. On February 8, 2022, the district notified Kennedy that its board of trustees had voted on that same date to propose her suspension without pay, and the district stopped paying Kennedy the same day. Kennedy requested a hearing on the board’s action. On June 16, 2022, following a hearing with an independent hearing examiner (IHE), the IHE recommended that Kennedy be suspended without pay. On July 27, 2022, the board voted to adopt the IHE’s recommendation. On appeal to the Commissioner, Kennedy argued that the district violated state law when it suspended her pay despite her timely request for a hearing. The Commissioner agreed. Under current state law, a teacher on a probationary contract who receives notice of a proposed suspension without pay has the right to request a hearing with an IHE under Texas Education Code § 21.251(a)(3). Relying on prior Commissioner decisions and state case law, the Commissioner reinforced the intent of the law - that if a hearing is requested by the teacher, then such hearing must precede the teacher’s suspension without pay. The fact that the IHE recommended suspension without pay, and the Board lawfully voted to adopt the IHE’s recommendation did not cure the school district’s error. The board’s decision to adopt the IHE’s recommendation in July 2022 could not retroactively suspend Kennedy without pay under her 2021-2022 contract. Because the district unlawfully suspended Kennedy before the hearing process could take place, the Commissioner ordered the district to pay Kennedy her remaining salary for the 2021-2022 year. The case is Kennedy v. Lamar Consol. Indep. Sch. Dist., No. 054-R2-08-2022 (Comm’r Educ. 2022).

No doubt it is frustrating for a district to continue paying a contract employee whose conduct it believes constitutes good cause to terminate. However, the law is clear on the point that a district may not suspend pay automatically.

Lesson #2 - When it comes to nonrenewal, notice is everything.

Following a board meeting on the proposed nonrenewal of his contract, the Human Resources Director for Marlin ISD gave a written notice to Claude Kelley on May 3, 2022, that stated the following, in part:

“This provides you with notice that the Board of Managers of Marlin Independent School District met on May 2, 2022. The District did not vote to renew your term contract. Instead, the District administration recommended for approval, to the Board of Managers, pursuant to Texas Education Code §21.206 and Policies DFBB (LEGAL/LOCAL), nonrenewal of your term contract at the conclusion of the contract period. Please let me know if you have any questions or concerns.”

Kelley appealed to the Commissioner arguing that he did not receive proper notice of the nonrenewal of his contract. The Commissioner agreed. Relevant provisions of state law ensure that an educator is given specific notices with regard to the nonrenewal process. Here, the written notice that was provided failed to meet most of those requirements. First, a school board must give notice that it proposes to nonrenew the teacher’s contract so that the teacher can request a hearing. Here, the notice Kelley received did not state whether the board itself had proposed nonrenewal; rather, it only stated administration’s recommendation to nonrenew Kelley’s contract. In failing to provide the required notice, the District elected to re-employ Kelley in the same professional capacity for the 2022-2023 school year. Second, Kelley did not receive notice of the reasons for proposed nonrenewal as required by law in either the written notice he received following the board meeting or other correspondence in which he was informed that he had violated certain identified Board policies. Kelly was not informed of any reasons listed under Board policy DFBB (LOCAL) for purposes of his proposed nonrenewal. Therefore, the Commissioner concluded that the nonrenewal of his contract was arbitrary and capricious, and unlawful. The case is Kelley v. Marlin Indep. Sch. Dist., No. 041R1-06-2022 (Comm’r Educ. 2022).

The failure of a school district to follow the statutory procedures on contract action is one of the best ways to get a contract decision overturned. These decisions should involve the assistance of school district’s legal counsel as early as possible. Legal counsel can certainly assess whether a school district has supported grounds to propose nonrenewal. Counsel can also assist with agenda posting language and the board’s motion language to ensure these items adequately communicate proposed nonrenewal action and otherwise meet state open meetings requirements. Legal counsel can also review or draft the written notice that must issue following the board’s action to propose nonrenewal.

Lesson # 3 – A district has some discretion in the information it considers when making the determination to end assault leave.

A special education teacher, Johnnie Turner, was assaulted by a student while at work and sustained serious physical injuries. Turner requested and immediately received assault leave on November 14, 2019. In addition, Turner received worker’s compensation medical and income benefits for several months. On August 31, 2020, a worker’s compensation doctor examined Turner and found that he had reached “maximum medical improvement” (MMI) on January 22, 2020, with a “zero percent whole-person impairment rating,” as these terms are defined by the Texas Workers’ Compensation Act. However, he found that Turner has not reached MMI for certain neurological conditions and requested additional assessment of these conditions. Subsequently, the Workers Compensation Division of the Texas Department of Insurance’s designated doctor examined Turner on November 5, 2020, and reviewed his medical records. This doctor concluded that Turner would have reached MMI on his neurological issues within days of his assault, and ultimately determined that Turner reached MMI on the injuries caused by the assault on January 22, 2020. On February 22, 2021, the district notified Turner that it was terminating his assault leave as of January 22, 2020.

Turner filed a grievance and appealed to the Commissioner following the school boards denial of his grievance. The issue on appeal for the Commissioner was the scope of the district’s authority to investigate and change an employee’s assault leave status under Texas Education Code § 22.003(b). Turner argued that the district had violated this law by terminating his assault leave based on a review of his workers’ compensation medical records and using workers’ compensation standards to change his assault leave status as ending on January 22, 2020.

The Commissioner examined Section 22.003(b), Texas Education Code, noting that under this law, school districts must pay assault leave immediately upon request, but they are also authorized to subsequently investigate and modify the assault leave benefits paid to an employee. The law does not specify how school districts investigate claims or what information they can consider in an investigation. The law also provides a district the ability to change an employee’s leave status and to charge excess assault leave against an employee’s personal leave or, if unavailable, the employee’s pay. This ability could only apply to decisions to terminate assault leave on an earlier date or retroactively. Against this authority, the Commissioner found that while workers’ compensation findings do not govern assault leave determinations, districts can consider evidence, including workers’ compensation medical reports, in investigating assault leave because section 22.003(b) does not direct or limit a districts’ investigation. “While not dispositive of assault leave, workers’ compensation medical records are certainly relevant to evaluating work assault injuries and employees’ recuperation from them, and school districts’ consideration of them does not violate section 22.003(b).” The Commissioner went on to determine there was substantial evidence to support the board’s decision to deny Turner his grievance based on the totality of information, including the medical reports of the designated workers’ compensation doctor. The case is Turner v. Mansfield Indep. Sch. Dist., No. 005R10-10-2021 (Comm’r Educ. 2022).

Lesson #4 - When it comes to employee religious expression at work, things are a bit more complicated.

For eight years, in Bremerton, Washington, assistant high school football coach Joseph Kennedy had a practice of kneeling to pray on the 50-yard line after football games. In 2015, the Superintendent sent Kennedy a letter informing him, in part, that any religious expression by Kennedy in which students were involved must be “non-demonstrative” to avoid the appearance of an endorsement of religion. After receiving the letter, Kennedy stopped offering pregame prayers and religious pep talks in the locker room. Through his attorney, Kennedy subsequently sent a letter to the district asking permission to continue to offer a postgame “personal prayer of thanks” in the middle of the football field, something he felt “compelled” to do because of his “sincerely held religious beliefs.” The district responded with a letter stating that Kennedy was to avoid “any overt actions” that could “appea[r] to a reasonable observer to endorse . . . prayer . . . while he is on duty as a District-paid coach.”

Following this correspondence, Kennedy conduct his midfield prayers after three games in October 2015. These prayers received media attention, and Mr. Kennedy was joined by members of the community standing around him as he prayed. After the third game, the district placed Kennedy on administrative leave for his “public and demonstrative religious conduct while still on duty as an assistant coach.” While Kennedy had received positive evaluations in the past, his evaluation in November 2015 rated his performance poorly and recommended against rehiring him for the next season.

Kennedy sued the district, alleging violation of his rights to free speech and free exercise of religion under the First Amendment. Kennedy took his case all the way to the U.S. Supreme Court, which held that Kennedy had a protected right under the Free Speech and Free Exercise Clause of the First Amendment to engage in his “quiet prayer of thanks.” The district violated Kennedy’s right when it ended his employment.

The Court concluded that Kennedy’s prayers were private and personal, and not governmental speech. According to the Court, Kennedy’s praying after football games on the 50-yard line was not “ordinarily in the scope” of his duties as a coach or seeking to convey a government message. The Court was also not persuaded by the demonstrative nature of Kennedy’s prayers. It did not appear to make a difference that Kennedy prayed while on duty and still in his school uniform, and in the middle of school events widely attended by students and the community. For the Court, these facts were similar to “a Muslim teacher [] wearing a headscarf in the classroom” or “a Christian aide []praying quietly over her lunch in the cafeteria.” The Court also determined that the district’s response to Kennedy was not neutral; rather, it singled out Kennedy for his religious expression during a time frame when other employees “were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters.” In other words, other coaches were allowed to engage in their own private speech during this time.

What about the District’s interest in not violating the Establishment Clause? According to the Court, the Establishment Clause in the U.S. Constitution does not “compel the government to purge from the public sphere” anything an objective observer could reasonably infer endorses or “partakes of the religious.” Stated another way, for the Court’s majority, Kennedy’s prayers did not violate the Establishment Clause because they could not reasonably be construed as a religious endorsement and did not coerce student participation in religious activity.

The Court’s holding appears to give public school employees broader leeway in expressing their religious views while at work, so long as the expression occurs outside their normal job duties. As such, a school district can restrict a teacher from incorporating their personal religious views in formal classroom instruction. What is not so clear after Bremerton are the circumstances that define when an employee is not acting in their capacity as a public school employee. Kennedy’s expression occurred minutes after the end of a game, while at work, in his school uniform, and in the middle of the football field. What if a teacher wants to lead a voluntary bible study on school property with high school students in advance of the school day and their duty time? What about a teacher wanting to pray with students at a “Meet at the Pole” event and speak at the event? Yes, things just got more complicated.

The case is Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022).

Lesson #5 - A neutral policy prohibiting all political expression has its value; without such a policy, school administrators are wise to not favor certain political messages over others.

Eric Dodge, a teacher, brought constitutional claims against the Evergreen School District, and select supervisors and administrators, including his principal. Dodge alleged that he had been retaliated against in violation of the First Amendment when the principal told him that he could not bring his Make America Great Again (MAGA) to teacher only trainings, and that if she saw it again, he would need to contact his union representative. For Dodge, the interaction with the principal was a threat of discipline which felt like an aggressive attack. The record showed that Dodge did not wear the hat but did have it out during a training. Following the training, some teachers complained about Dodge to the principal.

The federal district court sided with the school district and individual administrators on their motions for summary judgment. On appeal, the Ninth Circuit Court of Appeals reversed, in part, the summary judgments granted by the district court. The court of appeals concluded that Dodge was engaged in speech protected by the First Amendment. Why?

First, Dodge’s use of the MAGA hat was political in nature, and thus speech on a matter of public concern. Second, Dodge was speaking as a private citizen, and not a public employee. Addressing his claim of retaliation against the principal, the court of appeals held there was a genuine issue of fact on whether the principal, who had authority over Dodge’s employment, had threatened to take adverse action against Dodge when she stated that the next time Dodge had his MAGA hat he would need his union representative. Because it was undisputed that Dodge’s MAGA hat motivated the principal’s actions, the court concluded Dodge had submitted sufficient evidence of a prima facie First Amendment retaliation claim against the principal such that summary judgement should not have been granted.

The court also considered whether the principal had a legitimate administrative interest in preventing Dodge’s speech that outweighed his First Amendment rights. While there was evidence from the principal that staff felt intimidated, shocked, angry, scared and frustrated after learning of Dodge’s hat, there was no evidence that the MAGA hat interfered with Dodge’s ability to perform his job or the regular operation of the school. There was no evidence that it interfered with the teacher trainings.

The court distinguished this case from those situations where a government employer categorically prohibits political messaging of all types as a valid administrative interest. Here, however, there was no such policy in place at the time. The court also noted that the principal permitted and defended her allowance of other political symbols and expression on the campus, including a Black Lives Matters poster that was hung in the school library. As noted by the court, the principal clearly espoused a viewpoint preference for one type of political message. As stated in the opinion, “That controversial political speech cannot be quelled because others may find the speech objectionable is clearly established.” The principal should have known this, and therefore the summary judgment granted in her favor was reversed.

While Dodge is a federal case out of the Ninth Circuit, it illustrates the value in having a policy in place that prohibits political advertising or expression. Many public school districts in Texas maintain such policies. However, it is important to remember that where such local policies exist, they must be neutral, and consistently and equally applied. If no such policy exists, administrators need to avoid engaging in actions endorsing or admonishing a particular political viewpoint expressed by employees while at work. Dodge v. Evergreen Sch. Dist. #114, 56 F.4th767 (9th Cir. 2022).

Lesson #6 – When it comes to off campus student social media expression, “substantial disruption” at school can be exist where that expression interferes with the rights of other students.

During the 2016-2017 school year, student Cedric Epple created a private Instagram account where he shared posts considered funny but inappropriate for a wider audience. While other students followed the account, Epple only allowed individuals whom he trusted to have access to the account. After creating the account, Epple and his fellow students posted various pictures of classmates, historical images, and comments with racially charged messages that included other students who were Black. Even though Epple intended for the Instagram account to remain private, several students outside the account’s followers gained access to some of the images when the images were shared by one of the account’s followers. Additionally, another student was able to access the account, and the student shared the account’s content with other students. There was immediate impact at school. Once knowledge of the account’s content spread, school administrators were forced to convene with counselors and mental health staff to address the needs of a group of students who communicated they were too upset to go to class.

Teachers complained that most of their students knew about what had happened and wanted to talk about it, they shared that they had to address questions from students without having any information regarding the matter, that many students were upset about the incident, and the lessons for the day had been significantly disrupted. One student who was specifically targeted in a post left school early because she was severely upset. One student missed several days and eventually withdrew from the school after learning the posts made fun of her physical appearance. School counselors and mental health staff were inundated with students needing help handling their emotions after learning of the racist posts and comments on the account. Epple and his fellow student followers were suspended, and the principal gave notice that he was recommending their expulsion. Epple asserted protection under the First Amendment and took the matter to federal court. The district court granted the school district’s motion for summary judgment on his claims. Epple appealed to the Ninth Circuit Court of Appeals which affirmed the district court’s decision. The issue for court of appeals was whether school administrators could discipline the students for offcampus social media posts. The court concluded that they could based on the substantial disruption caused and because the circumstances arose to the level of bullying and harassment. School administrators may recall the recent U.S. Supreme Court decision in Mahanoy Area School District v. B.L, 141 S. Ct. 2038 (2021). In that case, a cheerleader asserted First Amendment protection regarding social media posts criticizing school officials that she posted on while off campus and on her own time using her personal device. The difficulty for the school district in Mahanoy was that there was not a sufficient showing of the cheerleader’s expression causing substantial disruption at school. According to the U.S. Supreme Court, “substantial disruption” requires “more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

Following Ninth Circuit Court case law in this area, the court of appeals held that Epple’s speech warranted disciplinary action because it “bore a sufficient nexus” to the school. First, many students were directly harmed by the content on the Instagram account. Teachers complained about missed instructional time because they were dealing with the quick-spreading news of the racist content. While Epple intended his account to remain private, it was “reasonably foreseeable” that content posted online by the students would reach the school. The court recognized that social media content, by nature, is easily transmittable, persisting long past the initial post. The posts featured identifiable students, with pictures often taken at school, and students outside the account’s followers viewed the account’s content during school hours. Another consideration for the court of appeals was that school administrators must respond to the harassment of their students. Not doing so could have potentially exposed the school district to liability under Title VI to the extent the school knows of a racially hostile environment and fails to adequately respond. The case is Chen v. Albany Unified Sch. Dist., 56 F.4th 708 (9th Cir. 2022).

Chen is not a Fifth Circuit Court of Appeals case, but

Texas school administrators can still draw guidance from it concerning the type of circumstances that arise to “substantial disruption” when holding students accountable for their off-campus expression. Administrators can consider the responses of other individuals, such as students and staff members, concerning the personal impact of the speech and the impact learning environment, such as lost instructional time and students missing school. Additionally, off campus speech can be addressed to the extent it targets specific individuals to the point of subjecting them to potential bullying or harassment, matters in which the school has a regulatory interest.

Lesson #7 - With regard to complaints of sexual harassment and discrimination, administrators need to employ remedial responses and document those responses.

Two cases out of the Fifth Circuit Court of appeals in 2022 addressed the actions taken by a school district that constitute remedial response(s) to claims of harassment and discrimination. In Roe v. CypressFairbanks Indep. Sch. Dist., the Fifth Circuit addressed a student’s claims of Title IX and constitutional violations surrounding her alleged sexual assault by a male student, Doe, while on campus. It was alleged that Doe and Roe had a relationship, and that Doe was controlling and abusive. At the time of the assault, Roe was 14-years old and pregnant. Roe sustained serious internal and external physical injuries requiring surgery. She eventually terminated her pregnancy. Prior to the assault, Roe’s mother had spoken to the assistant principal and other district administrators to express her concerns regarding the students’ relationship and Doe’s behavior. According to the court, the day after the assault, Roe’s mother visited the assistant principal, who said Roe’s mother would not be able to see any surveillance video and said, “If we punish him [Doe], we have to punish her.” Roe’s mother asked about counseling, but was told by campus counselor that the school “does not do that.”

With regard to looking into the matter, the campus reviewed video surveillance of the school and took some statements. However, the district admitted that it could not produce documentation of its investigation due to its document retention schedule. Campus police initially took a report, and the matter was handed over to the Sheriff’s office for investigation. However, the assistant principal did not follow up with Sheriff’s office and did not obtain a copy of the police report from campus police. The assistant principal also admitted that she had initially determined that the incident was a consensual one that went “too far.”

Roe’s absences from school increased after the assault. She intentionally overdosed on Benadryl after enduring harassment on social media that included a photograph of a dead fetus tagged to her, posts calling her a “baby killer,” and posts encouraging her to kill herself. This was in addition to being confronted in the school bathroom by a group of girls who accused her of trying to get Doe arrested for falsely accusing him of rape. The following school year, she reported being threatened by Doe. While an assistant principal spoke with Doe, the court’s opinion does not reflect that any further action was taken on Doe. Roe subsequently left the district, only to return in March 2016. Upon her re-enrollment, her mom requested that the school schedule her classes to avoid Doe. She was informed that the school would do what it could, but that nothing could be done about the past. According to the court, school personnel refused to provide reassurance or resources to Roe in her return. In 2016, at age 17, she withdrew from school during the spring semester and did not return.

Under Title IX, school districts are liable for studenton-student sexual harassment if (1) the district had actual knowledge of the harassment; (2) the harassment was under the district’s control; (3) the harassment was based on the victim’s sex; (4) the harassment was so severe, pervasive, and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefits; and (5) the district was deliberately indifferent to the harassment. For purposes of showing deliberate indifference, Roe had to show that the school district’s response was clearly unreasonable in light of the known circumstances. On the issue of whether there was sufficient evidence in this case to raise a question of fact on the issue of deliberate indifference, a quote from the court’s opinion pretty much says it all:

“The totality of the circumstances, including the District’s lack of investigation, awareness of the preassault abusive relationship, failure to prevent inperson and cyberattacks from Doe and other students post-assault, and failure to provide any academic or other appropriate support to Roe, culminated in exactly what Title IX is designed to prevent—the tragedy of Roe dropping out of school. A reasonable jury could find that the District violated Title IX based on these facts.”

The lack of documentation regarding the district’s alleged investigation did not help as it resulted in turning the case into a “she said/she said” dispute as between Roe and the assistant principal. Based on the circumstances, in the court of appeal’s opinion, a jury could go either way in determining whether the District acted with deliberate indifference. Accordingly, the court reversed the summary judgment previously granted in favor of the district on Roe’s Title IX claim. Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334 (5th Cir. 2022).

The incident in Roe pre-dates the current Title IX federal regulations regarding formal complaints of sexual harassment. The formal complaint process itself requires documentation of the school’s response to such complaints and investigation. In addition to this documentation, it is recommended that administrators also document (1) any remedial or supportive measures offered and implemented as between the alleged victim and alleged offender; (2) communications regarding the sufficiency of how such supportive or remedial measures are working; (3) communications with law enforcement regarding the status and resolution of any related criminal investigations; and (4) communications with the parties reflecting the reasons for any delays in the school’s investigation.

Another case addressing the adequacy of a campus administration’s response to alleged prohibited conduct is the case of Menzia ex rel. Z.M.-D. v. Austin Indep. Sch. Dist., 47 F.4th 354 (5th Cir. 2022). In the fall of 2017, Z.M.-D., originally from Cameroon, was a sixth-grade student in the Austin Independent School District. Z.M.-D. alleged that other students verbally and physically harassed her, called her racist names, told her to “go back where she came from.” In September, Z.M.-D. and her parent reported the bullying to the assistant principal for sixth grade. The assistant principal said that he would call the harassers’ parents, however he did not actually speak to any parents after making a phone call that was unanswered. At one point, Z.M.-D. told another student she “didn’t want to live anymore” because of the harassment, and the teacher referred her to the school counselor. The counselor performed a suicide risk assessment and referred her for further counseling. Two days later, Z.M.-D. assaulted one of the harassers, allegedly in response to being called a “bitch.” The assistant principal purportedly conducted an investigation and concluded that the incident did not constitute bullying or harassment. The campus principal assigned Z.M.-D. to another assistant principal, given the parent’s unhappiness with the original assistant principal. Z.M.-D. was disciplined for the incident, but the discipline was subsequently removed. Upon her return to the regular campus, Z.M.-D. alleged that she continued to be harassed. Stay away agreements were put into place as between Z.M.-D. and her alleged harassers.

Z.M.-D.’s parent sued the district on her behalf, alleging that it was deliberately indifferent to the harassment Z.M.-D. endured based on her race, ethnicity, and the fact that she was born outside of the United States. The federal district court dismissed the Title VI race discrimination claim pursuant to a motion for summary judgment filed by the AISD, concluding that the district was not deliberately indifferent because it “took some action in response to all of the incidents noted by Plaintiffs, including meeting with Plaintiffs, attempting to contact the parents of the other students reported by Plaintiffs, conducting an investigation and filing a report, offering Plaintiffs counseling services, and ultimately replacing the administrator in charge of Plaintiffs’ claims.” The dismissal was appealed to the

Fifth Circuit.

The Fifth Circuit ultimately agreed with the outcome in the district court on the Title VI claim. To succeed on such a claim, Z.M.-D. had to show as an element of this claim that the district was deliberately indifferent to the harassment. For purpose of Title VI, a school district is deliberately indifferent when its response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances. A school district must respond reasonably to a risk of harm such that it is taking remedial action. The court of appeals determined that when viewed in the totality, the school district’s response reflected that it had not acted with deliberate indifference. However, certain actions by campus administrators were not remedial, contrary to the district court’s conclusion. First, the assistant principal’s call to the alleged harasser was not remedial. He did not reach out to the parent, did not leave a voicemail, or call again. Secondly, campus administrator meetings with the parent and Z.M.-D. to listen to their concerns were not remedial in and of themselves. According to the court, listening to a student’s report of a racially hostile environment is the first step in taking measures to address it, but such meeting is not itself a remedial action because it is not a response to the harassment. The same was true of Z.M.-D.’s reassignment to another assistant principal for the purpose of holding meetings. Here, the reassignment was to make the parent feel more comfortable in bringing forward concerns to the campus’ attention.

However, this was not in and of itself a remedial action in response to alleged harassment.

Menzia helps illustrate what does not constitute remedial action for purposes of showing that a public school has not been deliberately indifferent to a complaint of harassment. In responding to harassment, administrators should understand that meeting with and listening to a parent or student’s concerns is only the first step. In fact, school policies governing complaints of discrimination and harassment generally dictate that campus or district administrators obtain information from the complainant and alleged victim. Examples of remedial steps that a school district can engage in include, but are not limited to, offering counseling, taking appropriate disciplinary action based on the facts known, implementing stay away agreements, offering students counseling, involving law enforcement (to the extent the circumstances rise to the level of potential criminal conduct) and conducting investigations.

Conclusion

We hope that this article provides you not only with an update on the latest legal issues but also some practical best practices. Given the state of division in our communities, we anticipate that concerns of religion, personal expression, and harassment/ discrimination will continue to take the spotlight. Therefore, it is important for administrators to stay informed to future legal developments in these areas.

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• Certification Update - Jennifer Rivera: TEA

• TEA’s Investigative Processes - Tina Farrell & Deborah Tramel Owen: TEA

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Breakout Sessions Include:

• Adverse Employment ActionNeeded Documentation and Investigations

• What’s the Cost? TRS ActiveCare Takes on the Market

• Fingerprinting & the Do Not Hire Registry

• FMLA

• FUNdamentals of Employee FUNding

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• Inappropriate Behaviors & Case Studies

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• Student Suicide: Mental Health and Legal Response

• Title IX: Past, Present, Future

• Building a Compilation of DOI Common Practices for HR Professionals

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