A boy is playing in a sandbox on his school’s playground. Suddenly, the ground caves in beneath him and drops him into a rattlesnake den. The child is seriously injured. Worse for him, the child lives in Texas.
The boy’s parents contact longtime personal injury lawyer John Kemmerer Ivey of Boerne and ask him to file a lawsuit against the school district.
He passes. There is no case.
“Their child was bit repeatedly by the snakes and almost died,” recalls Ivey. “[But] because there was no motor vehicle involved, there was no liability. It did not arise out of the operation or use of a motor vehicle.
“I had the unsavory job of explaining to the parents that the State of Texas and the school district doesn’t care.”
Welcome to the world of Texas law, which has some of the strongest — if not the strongest — protections for public schools from lawsuits. Under the doctrine of sovereign immunity, about the only way a school and its district (including charter schools) can be successfully sued is if the injury occurred “out of the operation or use of a motor vehicle,” which sounds almost laughable except that it’s true. (Or if a district waives its immunity and allows the suit to proceed — not very likely.)
Houston attorney Al Durrell discovered this the hard way at the start of this school year when his adopted five-year-old son had his jaw broken at Wilson Montessori School on August 25, 2016, after being carried through a hallway from the cafeteria to the principal’s office, while being held upside down by three adults, all employees of the school.
Wilson’s Montessori program coordinator, Krystal Perkins, called Durrell to the school. “She told me there was blood on my son and on his clothing and she didn’t know whose blood it was.”
Court documents filed later say, “Krystal Perkins stated that her elbow had come into contact with C.B.D.’s face in the hallway. Beth Bonnette [school principal] also stated that she had contact with C.B.D.” The third adult is now listed as an administrator at the school. The initials C.B.D. are used in the court documents to shield the identity of Durrell’s son.
His son, a kindergartner, wasn’t talking, and it wasn’t until Durrell got him outside and calmed down that the boy pointed to his mouth. Durrell hustled him to a dentist’s office, where besides being treated for the broken jaw, he had to have two teeth removed.
Since that day, Durrell has been trying to find out exactly what happened, and the Houston Independent School District is fighting him every step of the way, arguing in state court that under sovereign immunity, district officials have nothing they need to respond to. No depositions. No records.
School cameras recorded the incident. At first Durrell was told there would be no problem getting him a copy; the next day he was told he’d have to subpoena the district for it. He went to state court and a judge ordered the district to produce the recording, which he says HISD stalled on delivering to him until October 28, 2016, when HISD said the video was no longer available, having been accidentally (?) recorded over. Durrell has only three still photos that show his son being held upside down. Citing the ongoing lawsuit, a spokeswoman for HISD declined to comment on the case.
Durrell and his attorney, Chip Adams, want to depose witnesses in the discovery process so that they can perhaps proceed with the case in federal court, where they stand a better chance. Durrell’s son has been diagnosed with ADHD and epilepsy, and as a member of a protected class may find legal relief under federal civil rights statutes — protections that the State of Texas isn’t willing to provide.
“Texans hear so much propaganda about ‘frivolous lawsuits’ in Texas that they assume you can sue for anything,” Ivey says. “Unfortunately, public school districts and community colleges are protected from suits, about [almost] anything.”
As it turns out, even if a student is injured while on a school bus, under state law a school district still may be protected, as several historic Texas cases show — cases that HISD and other public school district attorneys routinely use to successfully defend any new legal claim that comes their way.
For instance, in 2011 a child identified as WRRX, a special-needs student in an HISD elementary school, was sexually assaulted on a school bus by two other students. There had been similar assaults in prior days. Mom filed suit against the district on behalf of her son, and her attorneys argued that the district was negligent when it failed to operate a security camera on the bus or review the footage. The security camera had been broken, so there was no recording of what had occurred.
A lower court said Mom, identified as PERX in the lawsuit, had the right to sue HISD, but upon further appeal by the school district to the 14th Court of Appeals, that ruling was reversed in August 2014 and all claims dismissed in an order signed by Justice Ken Wise.
The reason: The Texas appeals court agreed that the child’s injury “did not arise from the operation or use of a motor-driven vehicle.” As Wise wrote:
“PERX contends that the failure to operate the security camera, and the failure to review its footage, caused WRRX’s injury because, in the days before the assault, the security camera was broken and failed to record footage of other 4 alleged assaults on WRRX by his assailants. Had the camera been operable, PERX asserts, the assailants would have been apprehended before the assault at issue here, and WRRX would not have suffered injury.
“Nevertheless, PERX’s assertion does not demonstrate that WRRX’s injury arose from the operation of the school bus. Even construed liberally, PERX’s pleadings only speculate that WRRX would not have sustained injury if the security cameras had been on.”
Montoya v. the Houston Independent School District is a case often used successfully by HISD to defend itself against lawsuits.
Marcos Montoya, an eight-year-old special education student, was injured in 2002 when he fell from the emergency exit of an HISD school bus. As the First District Court of Appeals noted, “Marcos had a history of aggressive behavior on the school bus, including a history of leaving his seat on the bus, running around on the bus and attempting to exit the bus using the emergency exit.”
So HISD installed a special harness on April 4, 2002, to keep him in his seat. By May 5 Marcos figured out how to get out of it. On May 14 he got out of his harness again and opened the rear emergency door, but did not fall out.
By May 15 Marcos achieved the trifecta. Escaping the harness, he opened the emergency door, and this time, as the bus was moving, he fell out and got hurt. His parents sued, alleging that the harness hadn’t been used properly, that the driver had failed to watch for what was happening and that the driver failed to stop the bus before Marcos hit the exit. The district was liable, the parents said, for failing to install an effective harness and for failing to instruct its employee, the driver, in its proper use.
Even though this case involved a school bus, and a moving one at that, on March 31, 2005, the First District Court of Appeals threw out the lawsuit, saying that HISD’s governmental immunity stood.
Splitting some very fine hairs, Justice Terry Jennings, writing the majority opinion, stated that: “The Montoyas have still failed to demonstrate that Marcos’s injuries actually arose from the bus driver’s operation or use of the bus…This allegation actually relates to the bus driver’s duty to supervise and respond to Marcos’s behavior on the bus, not the driver’s operation or use of the bus itself.”
The justice made a similar argument about the harness — whether it was used properly or not “does not relate to the driver’s operation or use of the bus.”
Justice Elsa Alcala issued a dissenting opinion to one part of the findings. She wrote that the school bus was more than just the location of the injury. “Regardless of whether the child was negligently supervised, it was the movement of the bus by the bus driver that caused the serious injuries to the child from his fall through the emergency door of the moving bus.”
These aren’t just isolated cases. In the 1993 Goston v. Hutchinson case, an HISD bus driver let a student off at a nondesignated spot and she was killed. Again the courts found that while the injury resulted from a lack of supervision, it did not directly involve the movement of the bus.
Classically, in a McAllen ISD case, the courts again protected the district when a student was stabbed to death on a bus. “No liability because the injury arose out of the failure to control the behavior of the bus occupants, rather than the operation and use of the motor vehicle,” it was ruled.
In each case, while a school bus may have been the setting for an injury, the courts found that its operation wasn’t directly responsible for injury or death. Bad or nonexistent supervision by school district employee? School districts are immune from liability for that.
A Houston teacher apparently gets tired of pushing around a little girl with cerebral palsy who’s confined to a wheelchair. So she assigns another special-needs student to the task.
“You’re going to be Mary’s personal chauffeur. It’s going to be your job to push Mary from class to class,” says attorney Ivey, describing the case he just took on. “So special-needs student 1 pushes special-needs student 2 off a concrete ramp and causes serious injuries.”
Ivey works primarily in federal courts, where, besides the protections afforded special-needs students, he says, there are also rules that if a pattern of conscious indifference to or violation of civil rights rules can be shown at a school accepting federal funding — say, hazing that results in injury — the school itself can be liable.
Round Rock attorney Martin Cirkiel is attempting to show such a pattern in a lawsuit he has filed in federal court against the Corpus Christi ISD. According to the lawsuit, a boy now 16 identified in the suit as J.A. “has been bullied, harassed and even sexually assaulted by the same male student on numerous occasions,” beginning in middle school.
And despite the fact that J.A. has a learning disability and has been diagnosed with ADHD and fetal alcohol syndrome, the suit says the school district never intervened to keep J.A. safe from his repeat attacker and never held an ARD (Admission, Review, Dismissal) meeting as required for students like him.
Teachers have qualified immunity, Cirkiel says. Which means if a child was injured during, say, a punishment, the teacher can be sued individually, he says. Although if the injury was accidental, the teacher probably would not be liable, he says.
The Texas Tort Claims Act details the extensive sovereign immunity of state governmental bodies and sets a $100,000 limit on money damages for a single person or a single occurrence.
“You drive a school bus off a cliff and kill everybody on board and it’s $100,000 per incident, so you’ve got to split $100,000 among the surviving family members,” says Ivey.
“I think it would be great if Texas would allow a wider scope of liability,” he says. “Right now public schools in Texas have no liability for injuries caused, and most parents don’t know that. They send their kids off to school every day. They’re going to be safe; they’re going to be taken care of. If anything does happen, surely the school district will make it right. That’s just not the way it is.”
It’s not difficult to figure out why the State of Texas wouldn’t want to allow lawsuits against public schools. Taxpayers would have to foot the bill if the schools lost.
Certainly there has not been any driving movement in the state Legislature to change the status quo. Ask the Texas Education Agency for its position on this and spokeswoman DeEtta Culbertson responds via email: “Texas legislators write and pass the laws, the agency is charged with implementing and following the statutes. And, if someone wants to change the statutes, they would need to contact their local legislator.”
And Barbara Williams, spokeswoman for the Texas Association of School Boards, says that “TASB advocates for sovereign immunity for school districts, but not necessarily for individual employees who violate school policy and use unauthorized force with children.”
One of Al Durrell’s main complaints is that before he can do anything in the courts, he must by law exhaust the administrative appeals process through the schools. It took him ten months just to get to his first hearing before an HISD grievance committee. The district agreed to pay his son’s medical bills to that point — he’s gone in for therapy twice a week — but that was it. There was no apology and there were no apparent repercussions for any of the school personnel involved. Durrell’s next step is to appeal to the TEA itself, and he has no idea how long that will take.
Asked about the lengthy, education-mandated appeals process, Culbertson responded: “A person must exhaust all local remedies before filing with the agency. The TEA complies with the law and follows procedures.”
Attorney Holly Griffith Terrell of Pearland, who is “of counsel” for Martin Cirkiel, got into this kind of law after finding out 12 weeks along in her pregnancy that her daughter, now five, had special needs.
“When I was a kid, all the special-needs kids went to one room and you never saw them. I saw this as a niche area of law.”
Terrell is frequently involved in a school’s administrative process. If they can mediate the case, she says, they can get the student back in school more quickly. “Litigation is not fun for anyone.” But they do go to federal court if they can’t work things out.
Recently she took on a case in a Houston-area school district in which her client, a 12-year-old African-American boy with ADHD, says his teacher punched him in the jaw in a dispute over whether he could leave the classroom to go to the bathroom. The teacher has said it was an accident. Terrell went to see the boy because she wanted him to show her how the teacher had hit him and to see how believable he was.
“I used to be a boxer [Golden Gloves 11 years ago], so I brought my boxing gloves,” she says. “I said, ‘Why don’t you hit me?’ He looked at me with absolute horror. I had to explain I had been hit before; it’s gloves; I have a mouthpiece. I’m going to be okay with it. And I coaxed him into it.
“I expected to see this bully, this huge kid. I saw this mild-mannered, well-spoken kid who wants to be a lawyer when he grows up, not a bulked-up bully kid.”
Why mediate? “These cases are very fast-moving. This isn’t like typical litigation,” Terrell says. “He’s got to go to school. The timeline is a little bit different. There’s some urgency at hand.” Right now she is trying to get damages so he can get caught up in school; he’s been staying home in the meantime, she says.
Caseworker Robin Seth Petty, who works with both Cirkiel and Terrell from a Houston-area office, agrees that the majority of cases end up in mediation, one reason being that it’s difficult to prove a school was being deliberately indifferent to a parent’s complaint or the child himself. Speaking hypothetically, Petty says that in a case where a child is a behavior problem and has a disability, the school is required to do something.
“They have a duty to evaluate him and offer services that would mitigate his behavior so he can be successful,” says Petty, who has a master’s in social work from the University of Texas. Restraining is allowed, he says, “but you have to be trained how to do it. But you provide him with a space where he can be alone. A cool-down room. And de-escalate the situation.”
He says that often students like this are put in a behavior intervention program, adding: “No behavior plan is going to say, ‘We intervened by turning him upside down.’”
"If you Google my name in the court cases, you’ll find out that I’m the biggest loser,” attorney Martin Cirkiel says.
“That I’ve probably lost more cases in federal district court and before the Fifth Circuit Court of Appeals than just about anybody. And that’s because I litigate these cases. I hate losing, but I’m not scared to lose.”
Cirkiel was a social worker for many years and directed a small community mental health center in the Central Texas area before he got his law degree. From there it was natural for him to gravitate to representing kids injured at school.
“I think it’s important that these cases are brought to the judiciary if not settled, and that gives us the opportunity to teach the judges about some of these issues: bullying, harassment, whether it’s based on race, religion or gender stereotypes or disability. These cases are important. I probably have 30 to 40 in various stages right now.”
Asked why more cases don’t go his way when children are being injured at school, Cirkiel says he knows exactly why.
“There’s a public policy issue. I was arguing a case before the Fifth Circuit Court of Appeals and one of the justices said to me from the bench — and it kind of came out in the written opinion rather subtly in both its verbal and written form — but the message was quite obvious: ‘Mr. Cirkiel, if we find there was discrimination based on disability for your client, it opens the gates.’ You have the public policy issue having schools be liable for all kinds of stuff.
“So the courts really act more like gatekeepers. They strictly construe the law even in its most expansive ways to eliminate school district liability.”
Cirkiel insists that even if courts aren’t handing out judgments in favor of injured students, taxpayers end up paying for it anyway. “What would be better for school districts is to put time, energy and money into training and accenting those things that prevent these types of occurrences. That would save a lot more money for everyone.”
Al Durrell says his son is still haunted by what happened to him at Wilson.
“He does not allow me to speak about this in front of him and he still occasionally cries about it, and we’re quite a ways out. I recently passed Wilson Elementary and he burst into tears when we drove by.”
The image of a yelling, out-of-control child being hoisted upside down through a school’s hallways and then held fast by the school nurse is, of course, one view of C.B.D. Durrell says his son, who is tall for his age, has just recently learned how to ride his bike, loves to swim and likes hanging out with his friends. “He’s a pretty big personality and he makes friends very easily.”
At the same time, Durrell says he has always agreed that his son can lose control when upset. C.B.D. and another student had been kicking a lunch box back and forth under a cafeteria table at Wilson when their activity was discovered and adults stepped in. “My son has ADHD and epilepsy, which is kind of a bad combination. He becomes agitated somewhat easily, which is something I’m aware of and have never denied.
“The medical scan came back and showed that his brain is constantly misfiring, and that misfiring kind of escalates the ADHD. It’s a neurological and psychological issue that are kind of working against each other, and the medications for those two things work against each other, so it’s difficult to find a balance that works for him. And since he’s constantly growing, you have to constantly adjust how that is treated.”
C.B.D. finished out his school year at River Oaks Academy, a private school for kids diagnosed with ADHD and autism. After Wilson, his son was moved to HISD’s Stevens Elementary, where he was put in a behavior class. That didn’t work out either.
“He was being restrained on a daily basis, and I believe the teacher there on one particular day had my son in some form of restraint so that his nose was pushed into the ground, and he came home with a bloody nose and blood all over his clothes, [and the] teacher asked my son to say another student had done it, and I pulled him out,” Durrell says. He didn’t bother taking up the matter with the school; he just moved his son to the private school.
Restraint is always supposed to be the last resort, Durrell says. “In both schools at HISD, it was used as a first resort. At any hint of an issue, he was being restrained. At first they weren’t notifying me. And then I made sure they followed the law and provided me with a report each and every time he was restrained, and I have a stack of those.”
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Still, Durrell would like his son to return to public school. He’s been told C.B.D. can never return to Wilson, but he still thinks there’s a place for him somewhere in HISD’s huge system of schools.
“When I feel comfortable that this is not going to happen to him anymore, I would like to return him to mainstream public school. Right now with what has happened, I’m not comfortable moving him into their care.”
And in the meantime, Durrell waits for a ruling from the 14th Court of Appeals that will allow him to question school personnel and better find out what happened to his son on that August school day.