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.

The facts supporting Black’s nonrenewal arose from an investigation into Black’s conduct during a physical education class. While teaching hockey to first graders, Black used her hand to force the heads of fourteen students down to view a line on the floor. The superintendent questioned Black about this incident and, in doing so, asked if she was involved in any previous conferences with her principal about the use of force with a student. In fact, the district had documented a previous incident in which Black had a conference with her supervisor after she grabbed a student by the arm. The superintendent asked Black three times if she had spoken with her principal about the prior incident, but each time Black failed to acknowledge the incident or the conference. Based on Black’s untruthfulness in this situation, the board pursued nonrenewal for failure to fulfill duties and responsibilities, insubordination, failure to meet standards of professional conduct, and misrepresentation of facts to a supervisor. In addition, Black was a smoker, and evidence suggested that she smoked in a store room on campus. Smoking on a school campus violated district policies, and state and federal law. The district included these violations of policy and law as reasons for nonrenewal.

In her appeal to the commissioner, Black did not contest the board’s findings relating to lying to the administration or smoking. Instead, Black only asserted an immunity defense related to her use of force when teaching first graders to play hockey. The commissioner held for the district because Black failed to contest the board’s findings related to her alleged lying and smoking and therefore waived her right to contest those issues. In the alternative, the commissioner held that substantial evidence existed to support the board’s decision to nonrenew based on the incidences of lying to superiors and smoking on school property. The commissioner held that “if even one of the reasons for nonrenewal is supported by substantial evidence in the record, Petitioner cannot meet her burden to demonstrate that there is no substantial evidence to support nonrenewal.”

Black appealed the commissioner’s decision to district court in Castro County. TASB LAF filed a brief in support of Hart ISD, arguing that the Commissioner’s decision was correct. The district court held in favor of the school district upholding the board’s decision to nonrenew Black’s contract. Black v. Hart Indep. Sch. Dist., No. B9631-1210 (242nd Dist. Ct., Castro County, Tex. 2013). LAF’s Attorney: Randall J. Cook, Hardy Cook & Hardy, P.C., Tyler.