Summer 2013

Affirmative Action

Abigail Fisher applied for admission to the University of Texas in 2008. She did not qualify for automatic admission under the Top Ten Percent (TTP) plan. At that time, students admitted under TTP made up 81% of the freshman class. The University chose the remainder of the freshman class using a policy that considered race as one of many "plus factors." Fisher was not awarded one of the remaining slots in the class, so she filed a lawsuit challenging the policies used by the University to fill those slots.

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Employee Insurance Benefits

Several political subdivisions around the state, including Pflugerville ISD, extend insurance benefits to an employee’s domestic partner as defined by the eligibility requirements of an insurance carrier. Senator Dan Patrick asked the attorney general to determine whether this practice violates Article I, section 32 of the Texas Constitution (commonly referred to as the Texas Marriage Amendment or TMA), which states that a political subdivision of the state may not “create or recognize any legal status identical or similar to marriage.” The TMA defines “marriage” as only the union of one man and one woman. The legal question at issue was whether political subdivisions who offer employees the option to purchase health insurance for a qualifying partner were creating or recognizing a “legal status” prohibited by the TMA.

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Appointment of a Board of Managers

TEA Commissioner Michael Williams announced on December 6, 2012, that he planned to appoint a five-member board of managers to oversee the El Paso Independent School District for up to two years, effectively stripping the elected board of trustees of its authority.

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Weingarten Rights

City of Round Rock firefighter, Jaime Rodriguez, and the Round Rock Fire Fighters Association filed suit against the City of Round Rock and its fire chief, seeking a declaration that the fire chief's refusal to allow Rodriguez’s union representative to be present at a disciplinary interview violated Rodriguez's representation rights. The Travis County District Court granted summary judgment for Rodriguez, and the city and fire chief appealed. On appeal, the Third Court of Appeals in Austin considered whether Section 101.001 of the Texas Labor Code provides municipal employees represented by a labor organization with rights equivalent to so-called “Weingarten rights”—a private employee's right, upon request, to representation by a labor organization during an internal investigatory interview when the employee reasonably believes the interview may result in disciplinary action—named for the 1975 U.S. Supreme Court decision National Labor Relations Board v. J. Weingarten, Inc. The Austin Court of Appeals held that Section 101.001 affords rights equivalent to “Weingarten rights” to public employees. The city and fire chief appealed the decision to the Texas Supreme Court.

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Nonrenewal and Use of Physical Force

Hart ISD nonrenewed the contract of physical education teacher Dana Black for violating district policies that prohibited lying to her supervisors and smoking on campus. Black challenged the district’s action, claiming that Black was immune from any disciplinary proceeding under Texas Education Code section 22.0512, which protects teachers who use physical force against a student to the extent justified under Texas Penal Code section 9.62.

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Special Education

Stewart, a high school special education student in Waco ISD, was involved in an incident involving sexual contact between her and another student. In response, the District modified Stewart’s Individualized Education Plan (“IEP”) to provide that she be separated from male students and remain under close supervision while at school. Nonetheless, Stewart was allegedly involved in three other instances of sexual conduct, which she characterized as “sexual abuse,” over the next two years.

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Paperwork Reduction Act

Sylvia Ortiz was directed by her principal to produce a written summary of what she learned from two rapport-building exercises and a reflection on how students responded to the activities. Ortiz argued that requiring her to write these reports violated Texas Education Code section 11.164, which limits a district’s ability to require classroom teachers to prepare written information.

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Bullying

In 2007, Montana Lance attended elementary school in Lewisville ISD. Montana received special education services under the Individuals with Disabilities Education Act (IDEA) for emotional disturbance, learning disability, and a speech impairment. From 2007 to 2010, students bullied Montana and taunted him because of his speech impediment and harassed him by calling him gay. The court noted that the record showed the district took few, if any, steps to address these issues or alert his parents to them. After a confrontation in class, Montana was sent to the nurse’s office to be placed in ISS. In ISS, Montana requested to go to the nurse’s restroom, where he hanged himself.

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Exhaustion of Administrative Remedies

Are home school parents who allege a violation of the school laws of the state required to exhaust administrative remedies before filing suit against a school district and its employees?

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Professional Capacity

Are the positions of principal and assistant principal in the same professional capacity for purposes of reassignment? Jenkins v. Crosby Indep. Sch. Dist., Docket No. 043-R10-1211 (Tex. Comm’r of Educ. Proposal for Decision, Sept. 28, 2012). LAF’s Attorney: David P. Backus, Underwood Law Firm, P.C., Lubbock.

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Construction Defect Liability

Does the “contractual liability” exclusion in a Commercial General Liability policy exclude coverage for claims asserted against a contractor for breach of expressed and implied warranties, including breach of the warranty of workmanlike service? Ewing Construction Co. Inc. v. Amerisure Insurance Co., No. 12-0661 (Texas Supreme Court on certified questions from the Fifth Circuit Court of Appeals). LAF’s Attorney: Marc E. Gravely, Gravely & Pearson, L.L.P., San Antonio.

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