Summer 2015

Immunity from Breach of Contract Claims

This lawsuit arises from La Joya ISD’s contract with a third party administrator (TPA) for administrative services related to the district’s self-funded health benefits plan.  The contract between the district and the TPA contained a clause stating: “This Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.”

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Maintenance of Effort

In 2013, the U.S. Secretary of Education proposed amending regulations under Part B of the Individuals with Disabilities Education Act (IDEA), which govern the Assistance to States for the Education of Children with Disabilities program.  Through a Notice of Proposed Rule Making (NPRM), the Secretary sought public comment on proposed amendments to the regulations related to local Maintenance of Effort found at 34 C.F.R. § 300.203.  The term “Maintenance of Effort,” or MOE, refers to the IDEA requirement that school districts, or local education agencies (LEAs), expend the same amount of local/ state funding for special education and related services as it expended in the previous fiscal year.  Failure to meet MOE requirements could result in the LEA losing eligibility to receive IDEA funding and requiring an LEA to repay related funds.

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Whistleblower

Anna Luisa Kell was employed as a high school assistant principal by El Paso ISD.  An investigation into former Superintendent Lorenzo Garcia produced evidence that Kell was involved in manipulation of grade placements at her high school as part of the scheme that resulted in Garcia’s felony conviction. The El Paso ISD Board of Trustees notified Kell that her contract was proposed for termination, but Kell never requested the appointment of an independent hearing examiner by TEA. Thirty days after providing Kell notice of her proposed termination, the board voted to terminate her contract.

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Timeliness of Grievances

While meeting with a district human resources specialist, Melissa Anzaldua, a teacher at Valley View ISD, discovered that the district had failed to pay her in accordance with the district salary schedule based on her years of teaching experience.  The human resources specialist informed Anzaldua that the human resources department would investigate the pay discrepancy but failed to report the outcome of the investigation to Anzaldua.  Almost a month after discovering the pay discrepancy and conferring with the human resources specialist, Anzaldua filed a formal grievance under Policy DGBA(LOCAL) claiming the district owed her back pay for the years during which she was underpaid.  The board denied Anzaldua’s grievance as untimely because she did not file her grievance within 15 days of the date that the human resources specialist informed her of the underpayment.  Anzaldua argued that the conversation she had with the human resource specialist was an informal grievance that tolled the deadline to file a formal grievance. The district responded that because the human resource staff member was not a supervisor, principal, or administrator, Anzaldua did not properly engage in the informal grievance process.

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Americans with Disabilities Act/Section 504

Parents Breggett and Terrence Rideau filed suit against Keller ISD on behalf of their child who receives special education services, alleging that a teacher in the district physically abused their child in violation of the Americans with Disabilities Act (ADA) and Section 504.  After a two-week trial, the jury returned a verdict in favor of the Rideaus, awarding damages that included $150,000 for the parents’ past mental anguish.  After the verdict, Keller ISD filed a motion to dismiss for a variety of reasons including that the Rideaus lack standing to recover damages for their own injuries under the ADA and Section 504.

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Local Adoption of Instructional Materials

The Chair of the State Board of Education (SBOE), requested an opinion from the attorney general seeking guidance related to the authority of the SBOE to promulgate rules governing the process used by school districts and charter schools regarding the adoption and use of instructional material.  The request asked seven questions to the attorney general that seek to identify the extent of the SBOE’s rulemaking authority:

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Drought Rules

The LAF Board originally approved a request to participate in this case on September 26, 2013.

In Texas, older water rights take priority over newer ones.  This is referred to as the prior appropriation doctrine, which is found in Texas Water Code section 11.027 (“first in time is first in right”).  In 2011, the Legislature passed House Bill 2694 directing the Texas Commission on Environmental Quality (TCEQ) to adopt drought rules that afford a preference to cities and other public water suppliers in their diversions of state water without regard to the priority of their water rights.  The motivation for the legislation and corresponding rules is that those who supply water for essential public purposes should be able to divert water needed for those purposes, temporarily during a drought, even if their water rights’ priorities might not have allowed them to divert.

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Title IX Sexual Harassment

Former student Adrian Salazar filed suit against South San Antonio ISD and its former employee, Michael Alcoser, asserting claims under 42 U.S.C. § 1983, 42 U.S.C. § 1985, and Title IX, as well as several common law tort claims, arising from the alleged sexual abuse of Salazar by Alcoser.  On a motion to dismiss, the Court dismissed every claim except the Title IX claim against the District.

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Affirmative Action

The LAF Board originally approved a request to participate in this case on July 18, 2012.

In Fisher v. University of Texas at Austin, Abigail Fisher asked the Court to either strike down UT’s admissions policy as inconsistent with the 2003 Grutter v. Bollinger ruling, or alternatively, to reconsider (and overrule) Grutter.  At the heart of both cases is the question of whether and to what extent the Fourteenth Amendment’s guarantee of “equal protection of the laws” permits race to be used as a factor in efforts to achieve greater diversity in higher education.  For more than three decades, the Court has said that although race may be one of numerous factors taken into account, it cannot be the predominant consideration in an admissions process.

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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?  McIntyre v. El Paso Indep. Sch. Dist., No. 14-0732 (Texas Supreme Court, pet. filed).  LAF’s Attorney: Lisa Brown, Thompson & Horton, L.L.P., Houston.

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Immunity from Breach of Contract Claims

Should the decision in Tooke v. City of Mexia (holding that “sue and be sued” language in a statute did not, by itself, waive immunity from suit for claims against governmental entities) be applied retroactively to void judgments that have already been finalized and for which direct appellate review has been exhausted?  Engelman Irrigation Dist. v. Shields Bros. Inc., No. 15-0188 (Texas Supreme Court, pet. filed).  LAF’s Attorney: Ray Viada, Viada & Strayer, The Woodlands.

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Independent Educational Evaluation

Can a school district deny reimbursement to a parent under the Individuals with Disabilities Education Act (IDEA) for an Independent Educational Evaluation (IEE) that does not meet required criteria?  B. et al. v. Orleans Parish Sch. Dist., No. 15-30164 (U.S. Court of Appeals—Fifth Circuit).  LAF’s Attorney: Janet Horton, Thompson & Horton, L.L.P., Houston.

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Exhaustion of Administrative Remedies

Can parents sue a school district under state law for failing to equally and equitably fund different campuses without first exhausting administrative remedies?  Clint Indep. Sch. Dist. v. Herrera, No. 14-0903 (Texas Supreme Court, pet. filed).  LAF’s Attorneys:  David Thompson and Holly McIntush, Thompson & Horton, L.L.P., Houston.

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Nonrenewal Hearings

Are written student statements offered as evidence in a nonrenewal hearing inadmissible hearsay?  Los Fresnos Consol. Indep. Sch. Dist. v. Vasquez, No. 03-14-00629-CV (Tex. App.—Austin).  LAF’s Attorney: Clay Grover, Rogers, Morris & Grover, L.L.P., Houston.

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