DOCKET NO. 325-LH-0511

HISD,§

Petitioner§BEFORE (CHE)

§

V.§CERTIFIED HEARING EXAMINER

§

BILLIE DAY, §TEXAS EDUCATION AGENCY

Respondent§

RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER

Petitioner, Houston Independent School District, (“HISD”), proposes termination of Respondent, Billie D. Day (“Day”) continuing contract (“the contract”) pursuant to Texas Education Code Sections 21.256 and 21.158 on the basis of violations of HISD Board Policy of Corporal Punishment to discipline Student S in violation of the District’s policies and Student Code of Conduct. Day timely requested a hearing and a two-day hearing was held on August 4 and 5th.

Brendettae J. Payne is the Certified Independent Hearing Examiner (“IHE”) assigned by the Texas Education Agency to preside at the hearing.

Petitioner is represented by SandraD.Carpenter, Attorney at Law, with the law firm of Walsh, Anderson, Brown, Gallegos & Green, PC, Houston, Texas. Respondent is represented by James Fallon, Attorney at Law, 909 Texas, Suite 1810, Houston, Texas 77002.

On or about February 10, 2011, the HISD Board of Trustees voted to propose the termination of the continuing contract and employment of Mr. Day. On or about April 21, 2011, Mr. Terry B. Grier, the Superintendent tendered notice to Mr. Day that a proposed decision to terminate his continuing contract was pending before the Board of Trustees and advised him of the appeal procedures. On or about May 10, 2011, Mr. Day timely filed a written request for an appeal hearing before a Texas Education Agency, (hereinafter “TEA”), certified independent hearing examiner. On or about May 24, 2011, Brendettae J.Payne was appointed by the TEA to hear the Respondent’s appeal. See HISD Exh 2. The parties agreed pursuant to Texas Education Code §21.257 to extend by 45 days the Hearing Examiner’s deadline for issuing a recommendation. A hearing was held on August 4th and 5th, 2011 regarding a proposed nonrenewal.

HISD contends that it has reasons to terminate the continuing contract of the Respondent because Mr. Day’s use of Corporal Punishment to discipline Student SBviolates the District’s policies and Student Code of Conduct.

Findings of Fact

After due the consideration of the evidence and matters officially noticed, in my capacity as Independent Hearing Examiner, I make the following Findings of Fact (Citations to evidence are not exhaustive but are intended to indicate some of the basis for the particular finding of fact):

  1. Billie Day has worked in HISD since 1987. (TR P441 L11). His assignments have included: 10 years at the Harris County Youth Village (TR P444 L6-9, P445 L19), 3 years at the Bellfort AlternativeSchool (TR P448 L 1-6, L15-16), 3 years as an inclusion Facilitator (TR P449 -450), and 11 years at Paul Revere Middle School (TR P451 L4-9).
  1. Harris County Youth Village is a minimum security juvenile facility. (TR P444 L12-22). The Bellfort Alternative School is a school for children who cannot handle the regular school environment and have discipline problems. It has the same population as the Harper Alternative School. (TR P 448 L1-6). The students there are the same type of students that are in a Behavioral Adjustment Class (BAC).
  1. HISD employed Respondent pursuant to a continuing contract during the 2010-2011 school year. (Tr. 284 -286, Ex. P- 1).
  1. During the 2010-2011 school year, Respondent was a teacher assigned to Paul Revere Middle School. (Tr. 231 – 232, Ex. P-6). Mr. Day has been at Paul Revere for the last 11 years. His assignments there have included Resource, Resource Math, Inclusion Math, Inclusion History, Inclusion Science, Life Skills and BAC. (TR P451 L4-9, L13-20).
  1. When students in the BAC class get out of control, teachers get beat up, kids get hurt, chairs get thrown, and there is violence. (TR P462 L16-21).
  1. During the 2010-2011 school year Respondent was a teacher assigned to BAC Class – a class for special education students with behavioral concerns related to their special education condition. (Tr. 255 & 359).
  1. Mr. Day has worked his entire career in Special Education. The majority of Mr. Day’s career has been spent working with children in behavior settings where the students come into the classroom with a history of violence. During that time, Mr. Day has only had one complaint lodged against him. (TR P460 L11-12). Regarding the one complaint lodged against him, Mr. Day was never required to respond to an investigation. (TR P 461 L8-10).
  1. In the BAC class, requiring the students to stay in their seats is important because they are prone to fight. (TR P457 L9-21).
  1. On or about September 21, 2010, Day used physical force to discipline Student SB. (Tr. 24 -26; 195 -196; 239 – 240; 257 – 259; 490) (Exs. P-13; P-14; P-15).
  1. The campus administrators conducted an investigation into the allegations to determine whether Day’s conduct was improper and did not comport with District policies and acceptable standards of conduct. (Tr. 124 – 125, 140 -141, 292 -295).
  1. The investigation included taking verbal and written statements from each of the three students who were in the class when the incident occurred and Mr. Day. (Pet Exs. P-11 – P-16).
  1. HISD provided training to Respondent to equip him to properly restrain students assigned to the BAC class if restraint was deemed necessary by the assigned teacher to gain control of an out of control student. (Tr. 252 - 254).
  1. During the hearing, the following people testified on behalf of Mr. Day’s character: Brenda Byrd (TR P324), Cheree Beckom (TR P331), Sonia Smith (TR P344), Raymond Glass (TR P362), Iris Linden (TR P383), Calvin Whitfield (TR P391), Lynn Glasper (TR P380), Officer R. Baylor (TR P380), Delbert Winfield (TR P 380), and Thalia Washington (TR P407). Those who testified consistently stated that Mr. Day had a mild temperament and was low-key. All agreed they never witnessed Mr. Day hit a kid or use corporal punishment. They also agreed Mr. Day never handled a student in a way that made them feel uncomfortable. All have seen Mr. Day interact with students extensively in the school setting.
  1. During the hearing, Student SB (the complaining student) and Student JL testified to the events surrounding the incident on September 21, 2010.
  1. On the day of this incident, Mr. Day was in the classroom with five students and one Teaching Assistant. (TR P466 L23-25, 477 L16).
  1. His students’ desks were arranged with spacing between them in order to avoid fights. (TR P470 L18-16).
  1. Student J4 got up out of his seat, walked over to SB, and hit him in the head. (TR P476). Mr. Day immediately had the Teaching Assistant remove J4 and take him to the office. (TR P477 L23-25). Student J4 is a student with a history of violence.
  1. At this point in time, Mr. Day was alone in the classroom with the remaining 4 students. (TR P480 L15-16).
  1. SB asked to get a drink and Mr. Day said no. (TR P482 L20-24). At that time, allowing SB to get a drink would render either SB unsupervised or the class unsupervised due to the absence of the Teaching Assistant. The time was approximately 2:30pm. (TR P485 L8-9).
  1. SB returned to his desk, did his work and brought his work back to Mr. Day’s desk to be checked. (TR P485 L10-12).
  1. While at Mr. Day’s desk, SB took some old milk from the trashcan and snuck it back to his seat. (TR P486 L13-17).
  1. SB raised his book to hide the old milk, but he was discovered by Mr. Day. (TR P486 L20-22).
  1. Mr. Day instructed SB to come to the desk and put the milk in the trash. SB complied. (TR P487 L18-25).
  1. The other students in the class started laughing at SB, so he ran from the teacher’s desk and remained out of his seat. (TR P488 L8-1). The other students in the class would tease SB because he had not yet been suspended from the school. He was also one of the younger and newer students in the class. (TR P479 L1-3).
  1. While the other students were laughing. Mr. Day circled around the desk and met SB at his seat. (TR P489 1-2, P490 L1-10).
  1. Mr. Day instructed SB to sit down. (TR P490 L11-12. P258 L20-21).
  1. SB refused to comply. (TR P490 L13-15, P258 L22-23).
  1. At that time, Mr. Day had safety concerns that included the other student’s participation in the incident by encouraging the behavior. (TR P492 L11-18). Mr. Day did not want the class to get out of control. (TR P492 L11-18). SB had been running and he considered that to be out of control. (TR P492 L11-18). He was concerned that the other students might trip him or that there might be a major accident. (TR P499 L9-14).
  1. Mr. Day decided not to control the student using the Crisis Intervention Prevention (CPI) restraint in that moment. He considered it to be unnecessary under the circumstances. (TR P498 L17-23). Mr. Day didn’t feel that the situation warranted the bear hug restraint. (TR P254 L21-25).
  1. At that time, Mr. Day exercised his judgment as a professional. (TR P256 L23 – P257 L2).
  1. Mr. Day placed an open hand on SB’s chest and gently applied pressure so that the student would regain his seat. (TR P490 L16-25). At the same time, Mr. Day said, “Have a seat.”
  1. At the end of the incident, there were no marks on SB(TR P499-500).
  1. Mr. Day intended to simple return SB to his seat. He did not intend to push SB out of the chair. Mr. Day did not throw SB down. Mr. Day’s intent was to regain control of the student. (TR P499 L9-14).
  1. JL testified Day grabbed Student SB by the shirt and shook the student, causing his fists to hit the student in the front chest and/or stomach area(s). (Tr. 24 -26; 195 -196; 239 – 240; 257 – 259; 490) (Exs. P-13; P-14; P-15).
  1. JL also testified he has lied to teachers and the principal in the past to get another teacher fired. He testified he would accuse the teacher of stuff he knew wasn’t really true and told the principal lies about that teacher smoking weed in class. (TR 105, L12-20) That teacher was ultimately fired. (TR 105, L11 – 106, L10).
  1. JL and Mr. Day testified SB purposefully fell down to get the class to laugh. (TR 30 L 16-20; TR P491 L1-7).
  1. When the incident occurred, SB laughed at first. (TR P491 L15-18).
  1. The other students began to laugh and make fun of SB(TR P491 L19-21).
  1. SB became embarrassed and mad. (TR P491 L22, 492 L1-2).
  1. SB threatened to kill Mr. Day in his anger. (TR P493 L15-16).
  1. Mr. Day did not intend for SB to end up on the floor. (TR P494 L5-13).
  1. Mr. Day immediately reported the incident to the campus administration. (TR P495 L13-15).
  1. JL gave a statement on the day of the incident. (Pet. Exhibit 14).
  2. The statement indicates that Mr. Day grabbed SB by the shirt. (Pet. Exhibit 14).
  3. During the hearing, JL testified Mr. Day strangled and choked SB(TR P24 L20-22, P25 L6-7, 21-23, P36 L14-17)butJL never indicated in his statement that Mr. Day chokedSB. (Pet. Exh 14)
  1. JL statement indicates that SB purposely fell to the ground. (Pet. Exhibit 14).
  2. During the hearing, JL testified Mr. Day threw SB to the ground. (TR P25 L14-18, P37 L7-15).
  3. Prior to the hearing, JL never indicated the Mr. Day had used a yardstick on the students in the class. It is not in his statement or any other document.
  1. Despite the presence of two students from the same class, HISD provided no evidence to corroborate the allegation that Mr. Day was hitting students in the classroom with a yardstick.
  1. J.L.’s sworn statements materially deviate from his prior written statement.
  2. J.L. lied to P.E. coach Cheree Beckom for two years. He told her that his mother was dead in order to gain sympathy. JL’s mother was not dead. (TR P336).
  1. J.L. has numerous other disciplinary infractions that affect his credibility. He was suspended 20 times from school for 2 to 3 days each time. (TR P110 L23, P111 L1).
  1. Mr. Day had suspended JL twice before the date of the incident, September 21. (Petitioner’s Exhibits 16 and 19).
  1. In testimony, SB is asked to describe the incident before he is shown his statement. (TR P196 L4-24).
  1. In his first sworn account of the day in question, SB does not describe Mr. Day choking him. (TR P196 L4-24).
  1. In his first sworn account of the day in question, SB does not describe Mr. Day hitting him. (TR P196 L4-24).
  1. SB is shown his written statement afterward and his story significantly expands. (TR P197 L15).
  1. After reviewing his statement, SB goes on to describe being hit and choked. On cross examination, SB describes Mr. Day leaning him backward over his chair and choking him with both hands. (TR P222-223, P223 L17-18, P225 L1-2).
  1. SB alleges that this occurred after Mr. Day had already thrown him down and had returned. (TR P222).
  1. SB’s mother describes seeing bruising on his neck and redness on his chest on the afternoon of the incident. (TR P 181 L1-15).
  1. It is uncontested that the investigation of this incident started within minutes of its occurrence.
  1. Both Mr. Ferguson and Mr. Azaiez met with SB that day to investigate the matter.
  2. SB was never seen by the school nurse. (Resp. Exh 3).
  3. It is not credible that SB would have been injured as he and his mother described without being sent to the nurse by the campus administrators.
  1. Ms. Thalia Washingtontestified in her experienceSB will lie and scheme in order to get what he wants (TR P415 L1-3, P438 L 1-22).

Discussion

It appears to this hearing officer there is not good cause to terminate Mr. Day’s continuing contract with HISD. Good cause for termination exists in cases where a teacher has violated the school district policy on corporal punishment and is not protected by an exception under the Texas Education Code. Because the Texas Education Code provides conflict between their subsections in section 22.0512 of the Code, the Attorney General’s Office provided guidance regarding the interpretation of the section. I rely on the District’s policy, the Texas Education Code, Texas Penal Code and the Attorney General’s interpretation of section 22.0512 of the Code for my decision.

There were 5 people present during the incident on September 21, 2010 that involved Mr. Day and student SB. Mr.Day, and 4 students (SB, JL, RR and T) were the only individuals present. Two of the four students present testified, including the complaining student, Student SB. Mr. Day also testified.

The Texas Education Code and the Texas Penal Code allow an educator to use nondeadly physical force when the use of force is necessary to further a special purpose or maintain discipline in a group. The educator must reasonably believe the forceis necessary. If the educator believes the force is necessary, then the educator is immune from discipline from the school district.

On the day in question, prior to the incident, there was a fight that occurred between the complaining student and another student. It is alleged the complaining student, SB, was hit first by the other student and did not engage in retaliation. As a result of that fight, Mr. Day was left in the classroom alone with the students. Normally there is an aide present in addition to Mr. Day. Student SB asked Mr. Day to get a drink. Again, because Mr. Day was alone, he denied SB’s request because that would have resulted in the remaining students being alone in the classroom as every student must be escorted. Based on the testimony of the complaining student and the student witness, JL, SB grabbed a milk carton out of the trash despite Mr. Day’s instructions.

After receiving the milk carton, SB proceeded to take the milk carton to his desk and hide the carton behind a book. Mr. Day asked SB to come to his desk and throw away the milk. This prompted laughter in the classroom. Mr. Day testified SB threw the carton away and started running around the classroom. At this time, Mr. Day stood in front of SB’s chair to stop SB from running. This prompted an exchange of words between Mr. Day and SB. Mr. Day asked SB several times to sit in his chair. After SB refused, Mr. Day gently applied pressure to SB to guide him to sit down. SB ultimately missed the chair and fell on the floor. JL testified SB purposely fell on the floor to prompt more laughter from SB’s classmates.

JL, however, testified Mr. Day did not use gentle force, but Mr. Day grabbed SB by his collar and shook him twice to get SB to sit down. Later during the hearing, JL testified he previously made false statements and accusations against a former teacher because the teacher made him mad and he wanted that teacher fired. That teacher was ultimately fired. Based on the evidence, JL was suspended on Mr. Day’s recommendation prior to this incident. I do not believe JL is a credible witness to recollect the events of September 21, 2010.

SB testified during the hearing and said Mr. Day choked him, hit him in the stomach, and threw him on the ground. There is no credible corroborating evidence or testimony SB was choked or hit in the stomach by Mr. Day. As a matter of fact, JL testified Mr. Day grabbed SB by the collar and SB fell on the ground by himself as a way to ensue laughter. SB’s written statement says Mr.Day threw him off the chair, SB got up and cursed Mr.Day out, then Mr.Day choked SB and pulled SB up. There was not any credible testimony surrounding two separate incidents relating to a chair as written in SB’s statement.

Mr. Day brought 10 professional and personal character witnesses to the hearing who all testified regarding Mr. Day’s professionalism in a strained, sometime violent, work environment. They each individually testified Mr. Day remains calm and collective in those particular situations. Based on the character testimony, Mr. Day’s testimony and the student witness testimony who willingly admitted he has given false statements in the past to retaliate against a teacher who he deemed to upset him, I believe Mr. Day used nondeadly physical force and was justified in his actions based on the exceptions to the Texas Education Code. I further believe because of the fight prior to the incident, Mr. Day wanted to keep control of his classroom and felt it necessary to assist student SB in sitting in his seat, as remaining in your seat at all times unless given permission is a rule in the classroom.

Although HISD’s policies specifically prohibit the use of Corporal Punishment as a student disciplinary consequence, Mr. Day is protected from discipline and/or termination because he used nondeadly force that was necessary to maintain discipline in a group and thereforewas justified on September 20, 2010.

There is substantial evidence in the record and testimony that HISD failed to meet its burden of proof by a preponderance of the evidence to terminate Ms. Day’s continuing contract.

Conclusions of Law

After due consideration of the record, matters officially noticed, and the foregoing Findings, in my capacity as Independent Hearing Examiner, I make the following Conclusions of Law:

  1. Mr. Day has a valid and existing continuing contract with HISD.
  2. In accordance with Tex. Pen. Code 9.62, the use of nondeadly force against a person by an actor who is entrusted with the person’s care, supervision, or administration for a special purpose is justified, but only when and to the degree the actor reasonably believes the force is necessary to further the special purpose or maintain discipline in the group.
  1. In the case of a public school teacher, the special purpose is that of controlling, training and educating students. Hogenson v. Williams, 542 S.W.2d 456, 459-460 (Tex. Civ. App.—Texarkana 1976, no writ).
  1. In accordance with Tex. Pen. Code 9.62, a teacher may use reasonable force to enforce compliance with a proper command issued for the purpose of controlling, training or educating a child.