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Chapter 10



Criminal Law

- Crimes against the state

Civil Law

- Lawsuit between two parties usuallyinvolving monetary damages



State Torts are civil wrongs causing theinjured party to go to court seekingdamages•

Common State Torts - defamation, negligence (mostcommon in educational setting), assault, andinvasion of privacy are common examples

Federal Torts involve the infringement

of a person’s constitutional or federalstatutory rights.



Governmental Entities are generally immunefrom liability

Although governmental entities can be held liable fornegligent conditions of public property, school districts can

only be held liable under the Texas Tort Claims Act wheninjury results from the negligent use or operation of amotor vehicle operated by a school employee within thescope of employment (found at § 101.051 of the CivilPractices and Remedies Code)

Generally school districts can be held liable for negligencecases involving proprietary functions, but notgovernmental functions. However, almost all functions of schools are deemed governmental functions.



Barr v. Bernhard (1978) – did not involve motor vehicle therefore district is notliable

Garza v. Edinburg C.I.S.D (1979) – football is a governmental function thereforedistrict is not liable

Dunson v. Midland County I.S.D ( 1981) – furnishing swings on a playground is agovernmental function therefore district is not liable

Hopkins v. Spring I.S.D (1987) – injury not caused by use of motor vehicle thereforedistrict is not liable

Heyer v. North East I.S.D. (1987) – vehicle not owned or operated by districtemployee therefore district is not liable

Goston v. Hutchison (1993) – negligent supervision not negligent operation of motor vehicle therefore school district is not liable

Hitchcock v. Garvin and Plano I.S.D. (1987) – driver did not activate warningsignals of school bus resulting in accident therefore plaintiffs granted the right to atrial

Foster v. Denton I.S.D. (2002) – teacher sued district over mold infestation inbuilding which courts deemed to be tort allegations not involving a motor vehicletherefore district is not liable



$100,000 per person and $300,000 per occurrencefor losses involving bodily injury

Property damages are allowed a maximum of $100,000

Limits are listed at Civil Practices and RemediesCode § 101.023

School bus drivers and drivers contracted fortransportation of students by the district are not held

to a high level of care (that of other transportationservices for hire) but an ordinary level of care that isrequired of the general public



TEC §21.0511 – a professional employee of aschool district is not “personally liable for anyact that is incident to or within the scope of theduties of the employee’s position of employment and that involves the exercise of judgment or discretion on the part of theemployee”

The only exception is in the use of excessiveforce in disciplining students or being negligentin disciplining students resulting in injury.



All “professional employees” includes:- superintendents - teachers - nurses

- substitute teachers - principals - counselors- supervisors - social workers - librarians- student teachers - school board members - teacher’s aides

- DPS certified bus drivers

Also included under TEC §21.053 are “directservice volunteers” except for intentionalmisconduct or gross negligence.

All employees and volunteers working for aregional Education Service Center.



Cafeteria and Maintenance workers becausethey are not “professional employees.”

Professional Employees NOT acting in the

scope of their duties, NOT exercising judgment or discretion, and those usingexcessive force in disciplining students tocause bodily injury.



Schumate v. Thompson (1979) – Student was injured in a playground incident while underthe supervision of a teacher. Teacher was not liable.

Wagner b. Alvarado I.S.D. (1980) – Student injured in a physics lab due to spilling acid. Teacher and district not liable.

Stout v. Grand Prairie I.S.D. (1988) – Attacked constitutionality of qualifiedimmunity stating that it provided no means for injured parties to seek recourseand provided no public benefit. Courts rejected noting “if competent people are

discouraged from entering the teaching profession because of potential tortliability, the public education system will be adversely affected.”

Fowler v. Szostek (1995) – Student facing expulsion for the possible sale of drugs was senthome and subsequently committed suicide. Administrators not held liable.

Downing v. Brown (1996) – Student alleged that she was injured in a classroom due toteacher’s negligence in enforcing classroom discipline. Teacher not liable.

O’Haver v. Blair (1981) – Teacher struck student that was trying to use football facilities on

a weekend. Trial granted to plaintiff due to teacher stepping out of scope of employment,and it was not clear whether or not he was using discretion and disciplining student.



Civil Practices and Remedies Code§108.002 limits damages assessed to agovernmental employee to $100,000 aslong as the employee was acting in the

scope of employment and is covered byinsurance or an indemnity arrangement. Insurance and indemnity arrangement is

designed to ensure injured parties will have

a “deep pocket” from which to recoverdamages. The school district and employee can each

be liable, but not both can be sued.



TEC §22.052 provides immunity from injuriesresulting from the administration of medicine whenthe district has a policy regarding administration,the parent has given consent, and the medication is

in the original, properly labeled container. TEC §37.016 provides immunity from damages for

reporting, within the scope of duties and exercising judgment, a student suspected of using, passing, orselling drugs or alcohol on school property.

TEC §22.0511 provides immunity involving reportingof child abuse.



A person must provide ninety days’ writtennotice of the intent to file suit against anyprofessional employee of a school district.

A plaintiff is liable for attorneys’ fees and court

costs incurred by the professional employee if the suit is dismissed.

A court can require repayment of court costs andattorneys’ fees if the suit is determined frivolous.



Corporal punishment in schools has been leftto the State’s discretion by the U.S. SupremeCourt.

Corporal punishment is legal in Texas, butsome school districts have banned it orlimited its use.

No due process is necessary prior to the

imposition of corporal punishment nor is it tobe considered cruel and unusualpunishment. (Ingraham v. Wright, 1977)



Remember that the employee cannot be heldliable except in circumstances involvingexcessive force or negligence in disciplining astudent.

“The best way to avoid falling into the “excessiveforce” or “negligence” categories of TEC §22.0511 is

to follow school policy scrupulously” (Kemerer,Maniotis, & Walsh, 2007, p. 392)



Published rules stating what will result in the use of corporal punishment.

Corporal punishment used only as a last resort. Punishment is to occur in front of a witness but away

from other students. Student and witness should be informed of the

reason for punishment prior to its imposition. Parents should be notified as soon as possible that

the punishment was implemented and why.

Some schools allow parents to opt out but it is notlegally required that this be done (Baker v. Owen,1975)



Often schools have a “designated hitter”responsible for the administration of

corporal punishment. This employee should

be particularly careful and aware that “aflagrant abuse of the educator’s right to use

hands-on discipline may constitute acriminal offense as an assault as well as a

civil wrong (tort)” (Kemerer, Maniotis, &Walsh, 2007, p. 392)



Penal Code §9.62 recognizes that educatorsmay use force but not deadly force “whenand to the degree the actor reasonablybelieves the force is necessary to further the

special purpose or to maintain discipline inthe group.” Must be to enforce compliance with a proper

command issued for the purpose of controlling,

training, or educating the child. To punish the child for prohibited conduct.Must be reasonable and proportionate to the

offense.



TEC Section 26.004 requires parents to haveaccess to “all written records of a school districtconcerning the parent’s child” which includescounseling records and psychological records.

Circumstance in which records can be withheld: Records have to be maintained by licensedprofessional counselor (LPC).

Records have to meet the federal definition of “solepossession records” under FERPA.

LPC has to determine that the release of the recordswould be harmful to physical, mental, or emotionalhealth of the student.



Under FERPA, counselors may disclose informationto school personnel with “a legitimate educationalinterest” in the student but school personnelcannot be held liable for violations of FERPA.

This includes release to governmental agencies when itis required or authorized by law.

Can be sued for not disclosing information in situationsthat imminent danger is present to third parties but the

duty to report is to medical/law enforcement personnelnot the potential victims.



“Every person who, under color of any statute,ordinance, regulation, custom, or usage, of anyState or Territory, subjects, or causes to besubjected, any citizen of the United States or

other person within the jurisdiction thereof tothe deprivation of any rights, privileges, orimmunities secured by the Constitution andlaws, shall be liable to the party injured in an

action at law, suit in equity, or other properproceeding for redress.”



Governmental entities such as schooldistricts are “persons” and subject toliability under §1983.

Can only be held liable when the injury iscaused by an official policy of the entity orby an act of an official policy maker of theentity.

Official policy makers have been granted ordelegated final authority to establish policywith regard to the particular issue.



School districts cannot be held liable for the acts of aprincipal, central office personnel, or superintendentbecause they are not policy makers for the followingreasons: They make decisions that are limited by policies not of their

making. Their decisions are subject to review by the school board.

School board has retained the authority to measure theofficial’s conduct for conformance with board policy.

The School district can only be held liablewhen the school board itself violates and

individual’s rights.



Suits involving personal injury mustestablish: That a constitutional right is involved.

That the actions of school officials exceeded merenegligence. Constitution does not hold the government

responsible for failing to provide a safe workenvironment therefore the district is not

liable for employee injury. Compulsory attendances laws do not create

a duty to protect one student from another.



Although districts cannot be held liable forinjury to one student by another, anothertheory is emerging. The Fifth Circuit Courthas not made a firm decision on this theory

yet. “If the state takes affirmative action to create adangerous situation, to make a dangeroussituation worse, or to leave an individual morevulnerable to existing dangers than he or sheother wise would have been, the state should beheld liable for the individual’s injuries eventhought the injury actually was inflicted by aprivate actor” (Kemerer, Maniotis, & Walsh, 2007,p. 406)



Negligence alone will not impose liability,deliberate indifference can lead to liability.

The following court cases all agreed the

district was negligent, but that did notconstitute liability. Gonzalez v. Ysleta I.S.D. (1993)

Leffall v. Dallas I.S.D. (1994)

Myers v. Troup I.S.D. (1995)



Liability may be imposed for those “acting under thecolor of law.”

Individuals can claim qualified good faith immunity,but governmental entities cannot.

Individuals can only claim if “their conduct does notviolate clearly established statutory or constitutionalrights of which a reasonable person would have known.”

The courts decide whether the law was clearlyestablished or not.

Teachers as well as administrators can claim qualifiedgood faith immunity, and the courts expects teachers tohave a basic understanding of key concepts of the law.



School districts can be held liable if thestudent is able to prove that schoolofficials were deliberately indifferent to

known incidents of sexual harassment. The harassment would have to be

severe, pervasive, and “objectively

offensive.”School districts can be held liable for

fraudulently acquiring federal funds.



Public educators have no immunity from violations of criminal law.

Public educators are shielded from tort suits as long as theyare acting in the scope of their employment and are usingdiscretion.

School professionals are vulnerable in situations involvingdiscipline or the operation of a motor vehicle.

School districts are immune from tort with the exception of situations involving the use of a motor vehicle.

All school personnel should understand confidentiality of student records.

All school personnel should be aware of the increasingfederal rights violations.



Walsh, J, Kemerer, F & Maniotis, L. (2005). The Educator’s Guide to Texas SchoolLaw. (6th ed.) Austin,Texas, University of

Texas Press.

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