DOCKET NO. 133-LH-0509

DALLAS INDEPENDENT §BEFOREINDEPENDENT

SCHOOL DISTRICT §HEARING EXAMINER

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Petitioner, §

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v. §PHYLLIS LISTER BROWN

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DEXTER ADAMS §

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Respondent, §TEXAS EDUCATION AGENCY

FINAL RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER

Statement of Case

Dallas Independent School District, Petitioner, has proposed the suspension of Dexter Adams pursuant to Dallas Independent School District Board Policy FFG(Legal).

Petitioner, Dexter Adams represented himself in the proceedings. Respondent, Dallas Independent School District (“DISD or District”), was represented by Mrs. Veretta Frazier, of West & Associates, L.L.P. of Dallas, Texas.

Findings of Fact

After consideration of the record and matters officially noted, the following findings of fact have been proven by a preponderance of the evidence:

  1. Respondent Dexter Adams (“Respondent”) has been employed by DISD as a Teacher at Roosevelt High School (“Roosevelt”) since the 2005-2006 school year.
  2. On or about January 8, 2009, Respondent was contacted by a DISD Administrative Investigator who was conducting an administrative investigation into an allegation of suspected child abuse of a student during the school year of 2007/2008. Respondent was asked to assist in the investigation of the child abuse allegation by submitting a written statement to questions propounded by the Investigator.
  3. Respondent issued a written statement as the requested of the DISD Administrative Investigator. Respondent reported within his statement seeing a DISD employee paddle a student approximately 2-3 years prior to issuing the statement. Respondent denied using corporal punishment as a form of discipline.

Respondent presented uncontraverted evidence that at the time of the paddling, he reported the incident to his school Principal.

  1. Following the investigation of the alleged child abuse, Respondent was notified that DISD was recommending suspension without pay for twenty (20) days for the following reason: “You had knowledge of corporal punishment being imposed upon students, yet failed to report to supervisor and/or failed to file a child abuse report”. The suspension is pursuant to DISD Board Policies DFBA (Legal) and FFG (Legal).
  2. Respondent proposed discipline is for failure to report suspected child abuse or neglect. Respondent is not charged with violating the DISD no corporal punishment policy.
  3. DISD’s Board of Trustees amended Board policy FFO (Local)-Student Discipline-on March 31, 2005, relating to corporal punishment to state “The Board prohibits the use of corporal punishment in the District. Students shall not be spanked, paddled, or otherwise physically disciplined for violations of the Student Code of Conduct”.
  4. DISD issued Board Policy FFG (Legal-August 16, 2005)- Student Welfare Child Abuse and Neglect- states in part “Any person who has cause to believe that a child’s physical or mental health has been adversely affected by abuse or neglect by any person shall immediately make a report as required by law.

Reporting Policies- The Board shall establish and annually review polices for reporting child abuse or neglect. The policies must require every school employee, agent, or contractor who suspects child abuse or neglect to submit a written or oral report to at least one of the authorities…within 48 hours or less…after learning of facts giving rise to the suspension. Board Policy FFG (Legal); Texas Adminstrative Code Rule 61.1051.

The report should reflect the reporter’s belief that a child has been or may be abused or neglected or has died of abuse or neglect. Family Code 261.101(a).

  1. Texas Administrative Code Rule 700.403(a) - Definition of Child Abuse and Neglect in School Investigations- states “For purposes of an investigation in a school setting, the terms abuse and neglect shall have the meaning assigned to those terms in the Texas Family Code, Section 261.001 (1) and (4), and those terms are further defined in Section 700.501 of this title, unless the definition is clearly in applicable to reports of abuse or neglect in school settings.

Rule 700.403(b) states “Abuse and neglect in this context do not include…reasonable physical discipline…...”

  1. Texas Family Code Chapter 261.001(1) states “Abuse” includes the followings acts or omissions by a person….(c) physical injury that results in substantial harm to a child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian or managing or possessory conservator that does not expose the child to a substantial risk of harm.

261.001(4) states “Neglect” includes”: (a) the leaving of a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child…….”

  1. DISD published and distributed to Respondent an Employee Handbook titled “Recognizing and Reporting Child Abuse”. The handbook provided employees with information about signs of possible child abuse and neglect and outlined reporting procedures.

The handbook provided a section which outlined the following signs that a child could be abused or neglected. The handbook did not identify or make any reference to corporal punishment as possible child abuse.

  1. Texas Family Code Section 261.110 states “An employer may not suspend or terminate the employment of, or otherwise discriminate against, a person who is a professional and who in good faith….. (2) initiates or cooperates with an investigation or proceeding by a governmental entity relating to an allegation of child abuse or neglect.”
  2. DISD Board Policy FFG (Legal-August 16, 2005)-Student Welfare Child Abuse and Neglect- further states “A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from any civil or criminal liability that might otherwise be incurred or imposed. Family Code 261.106.

Discussion

Any person who has cause to believe that a child is being physically or mentally abused or neglected, is mandated by law and by DISD policy to report their suspicion to designated authorities.

DISD has charged Respondent with failure to report suspected child abuse or neglect. Respondent challenges the Districts claim of failure to report on three (3) grounds: First, Respondent did not believe or suspect the child referred to within his statement to the Investigator had been or may be physically or mentally abused or neglected; Second, Respondent opines that pursuant to the Texas Administrative Code and The Texas Family Code, corporal punishment is not abuse; and Third, although corporal punishment is a direct violation of DISD Policy FFO (Local), FFO (Local) does not require the reporting of incidents of corporal punishment. The duty to report is only required under FFG (Legal) which relates specifically to the belief of child abuse and/or neglect.

Respondent further argued in the alternative, that should this hearing officer decide that corporal punishment is in fact “child abuse” and reporting was required, he is exempt from suspension or termination under the Immunity provisions of State law and District policy.

All Educators in the State of Texas are charged in part with serving as a protector of the children in their District. As such, DISD implemented a policy provision prohibiting corporal punishment as a means of furthering their fulfillment of that charge. The facts supporting the finding of a continuous blatant practice of paddling in the underlying investigation is at a minimum, disturbing. The District however has failed to prove by a preponderance of the evidence that the Respondent violated District Board Policy FFG (Legal).

Conclusions of Law

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

  1. Jurisdiction to hear this case is proper under Texas Education Code Chapter 21, Subchapter F, Section 21.251(a) (2) of the Texas Education Code.
  2. The Respondent is a “teacher” as defined by Subchapter E, Section 21.101 and Section 21.201 of the Texas Education Code.
  3. The Respondent was employed as a teacher by DISD pursuant to a term contract as defined in Subchapter E, Section 21.201(3) of the Texas Education Code.
  4. A twenty (20) days suspension was recommended for Respondent pursuant to District policy.
  5. Respondent was provided a fair and impartial hearing pursuant to Chapter 21, Subchapter F, of the Texas Education Code.
  6. Pursuant to his contract, Respondent may be suspended without pay in lieu of termination for good cause as determined by the Board.
  7. The appeal by the Respondent was conducted pursuant to Section 21.256 of the Texas Education Code, and the standard of review in determining the findings of fact were based on the “preponderance of the evidence.”
  8. There was no evidence presented to refute Respondents claim that he did not believe that the child’s (referred to within his written statement) physical, mental health or welfare had been adversely affected by abuse or neglect by Coach Daniels.
  9. The Texas Administrative Code Rule 700.408 defines child abuse and neglect in school investigations.
  10. The Texas Family Code Chapter 261-001 defines “Abuse”.
  11. DISD FFG (Legal) requires all DISD employees to report if they believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect.
  12. DISD FFO (Local-3/05) bans corporal punishment in the District, but does not have a reporting provision.
  13. Any conclusion of law deemed to be a finding of fact is hereby adopted as such.

Recommendation

After due consideration of the record, matters officially noticed, and the Post-Hearing Brief filed by the parties, in my capacity as Certified Hearing Examiner, it is hereby recommended that Respondents appeal of his (20) day suspension without pay be GRANTED and the recommended suspension OVERTURNED/SET ASIDE.

IT IS FURTHER RECOMMENDED that the Board of Trustees of the Dallas Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and enter an order consistent therewith.

SIGNED AND ISSUED this 31st day of July, 2009

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Phyllis Lister Brown

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