Avoiding Pitfalls When Disciplining Employees for Use of Force

Mike Morath began serving as the T.E.A. Commissioner of Education on January 4, 2016. During his term, he has decided seven appeals from educators who were disciplined for the use of force against a student. Only twice has Mr. Morath ruled in favor of the district. At first glance, Mr. Morath’s tendency to rule in favor of the educator is troubling for school districts. However, by considering the correct standards when disciplining educators for use of force, you can greatly increase your district’s chances of coming out on top in a Commissioner’s hearing.

The most vital takeaway is that a district must always consider Texas Education Code §22.0152 when disciplining an educator for use of force against a student. That statute provides all district professional employees with immunity from discipline for the use of reasonable force to further the special purpose of education.

The most recent Commissioner’s decision on use of

BY RYAN MITCHELL

force was Stoneham v. Crowley ISD. In that case, the board terminated Mr. Stoneham’s employment based strictly on its local policies, without even considering the teacher’s possible immunity under section 22.0512. Your district’s policies and directives cannot override the immunity statue: if the use of force is protected under 22.0512, then the district cannot discipline the educator, regardless of what any local policies and directives may say.

The Commissioner held that Crowley ISD made a fatal error by not considering section 22.0512. However, the Commissioner made it clear that the educator would have prevailed even if the district had not made that error. To understand why, we need to delve into the meaning of the word “reasonable.”

Educators are immune from discipline when they reasonably believe the use of force to be necessary to further the special purpose of education. Mr. Morath’s decisions – in Stoneham and beyond – have made these points abundantly clear: a. The age, sex, and condition of the child. In both of Mr. Morath’s decisions in favor of the district (Gracia v. Brownsville ISD and Doggett v. Seguin ISD), the student was much smaller than the educator. A certain level of force may be reasonable when the student is an ablebodied high schooler, but not reasonable when the student is in kindergarten or is a student with a disability. b. The nature of the student’s offense or conduct and the motives. Be very cautious about disciplining an educator for use of force when there was any indication that the student could have posed a threat to the safety of self or others. In Stoneham, Williams v. Spring ISD, and Zarsky v. Southside ISD, the educators prevailed in the Commissioner’s decisions largely because each educator’s use of force was in reaction to a fight or to prevent a potential fight. c. The influence of the student’s example upon other students. Commissioner’s decisions have rarely addressed this factor other than in passing. d. Whether the force was reasonably necessary to compel obedience to a proper command. A district must consider whether there was an offense and then determine what level of force was reasonably necessary to maintain or restore control or discipline. e. Whether the force was disproportionate to the offense, is unnecessarily degrading, or is likely to cause serious injury. An educator might reasonably use physical restraint to stop a fight, but it would not be reasonable to use that same force against a student who, for example, got out of the seat without permission. The simplest way to think about this factor is that the force used should be the minimum amount necessary to achieve the needed result.

1. The educator does not have to prove that the use of force was reasonable. Rather it is the district’s burden to prove that the educator’s use of force was not reasonable.

2. The district must view the use of force from the educator’s perspective to determine if the educator reasonably believed the force was necessary.

3. The Commissioner’s guidepost for reasonableness is what an “ordinary and prudent” person in the educator’s place would have believed to be necessary.

A district’s best plan for determining whether the use of force against a student was reasonable is to rely on the factors laid out in Hogenson v. Williams, a 1976 decision from the Texas Court of Civil Appeals. Let’s look at each one of the so-called “Hogenson factors” with reference to decisions issued by Mr. Morath.

A district contemplating discipline against an educator for use of force against a student must consider whether the educator has immunity under section 22.0512, with the factors above serving as guideposts for making the determination of “reasonableness.” If the district does issue discipline (suspension, nonrenewal, termination) then the educator may appeal to the Commissioner. While Mr. Morath’s rulings in use of force appeals have generally been in favor of the educator, your district will be on solid ground if it follows the correct legal guidelines.