Thought Leadership

Timing is Everything: Recent Case Highlights the Importance of Timing in Retaliation Cases

A recent court decision out of Pennsylvania provides an excellent case study on retaliation rules in Title IX cases. In M.D. v. Trinity Area School District, a Federal trial court allowed a student’s Title IX retaliation lawsuit against her school to move forward to the discovery stage. A key to the court’s decision was the “suggestive timing” between the student’s participation in the Title IX process and a negative action taken against her by a coach. The case is a good reminder of many of the fundamentals of Title IX retaliation claims, including the importance of timing.

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EDUC 101: Summer TEA Commissioner Decision Update

While teachers and administrators enjoyed a well-deserved summer break, Commissioner Morath and the Texas Education Agency’s Office of Hearings and Appeals were busy issuing several important Commissioner’s decisions in employment matters. For this first of our regular series on Commissioner’s decisions, here is a roundup of lessons school districts can learn from this summer’s rulings out of Austin.

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Emotional Distress Damages: How Far Does Cummings Reach?

Earlier this year, the United States Supreme Court held in Cummings v. Premier Rehab Keller, P.L.L.C. that emotional distress damages are not recoverable in private actions brought to enforce Spending Clause statutes.  After acknowledging that “Congress has broad power under the Spending Clause of the Constitution to set terms on which it disburses federal funds”—including by conditioning an offer of federal funds on a recipient’s promise not to discriminate—the Court explained that Spending Clause legislation “is much in the nature of a contract: in return for federal funds, the [recipients] agree to comply with federally imposed conditions.”  The Court then held that plaintiffs cannot recover emotional distress damages for violations of Spending Clause statutes because emotional distress damages are not generally compensable in contract law, and because funding recipients lacked “clear notice” that accepting federal funds would subject them to emotional distress damages in private actions brought to enforce Spending Clause statutes.

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Biden’s OCR Warns Schools to Not Discriminate Against Students and Employees Seeking Abortions

The U.S. Department of Education’s Office for Civil Rights recently released a small guidance document with a big warning message to schools, colleges, and universities: Title IX requires educational institutions to protect their students and employees from discrimination on the basis of pregnancy, including pregnancy termination and recovery therefrom. That means schools cannot treat students or employees differently because they obtained an abortion. Schools must also treat abortion like any other temporary disability for hospital and medical benefits, services, plans, and policies. And, under Title IX, schools must provide leave to individuals for termination of pregnancy or recovery therefrom for as long as the student or employee’s physician says it is medically necessary. The guidance, issued on the 100th day after the U.S. Supreme Court overturned Roe v. Wade, does not provide new law. But it is a clear warning to schools that specific actions concerning students and employees seeking or who have received abortions could lead to administrative enforcement from OCR.

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STATS 101: EEOC Filings are Still Down, but Certain Claims are More Popular than Ever

Recent data published by the EEOC shows a continuing downward trend in the number of employment-related charges. For example, EEOC data shows a decline of more than 27,000 charges filed annually in 2021 as compared to the number of charges filed in 2014. There are a number of factors contributing to this decline, including the impact of COVID-19 and the resulting labor shortages and—until recently—the relative ease of finding new employment. As the country continues to recover from the pandemic and face uncertain economic conditions, however, digging a little deeper into the data can reveal a few trends that may help guide educational employers in addressing areas of employment challenges that are certain to continue.

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So, the Legislature Has Waived Your Governmental Immunity . . . Or Has It?

As political subdivisions of the state, Texas school districts and community colleges are generally immune from claims absent an express legislative waiver. Although certain statutes, including the Texas Whistleblower Act and the Texas Commission on Human Rights Act (“TCHRA”), do contemplate the waiver of governmental immunity, it is important to remember that they do so only to the extent that the plaintiff has asserted a valid claim. This means that a school district or community college sued under these statutes may be able to bring the lawsuit to an early end by filing a plea to the jurisdiction arguing that the plaintiff has not alleged (or cannot prove) the elements of their claim, or that they failed to strictly comply with any statutory prerequisites.

A recent opinion from the Austin Court of Appeals rendered judgment dismissing the plaintiff’s claims in just such a case. Austin Indep. Sch. Dist. v. Anderson, No. 03-21-00286-CV, 2022 WL 3649357 (Tex. App.—Austin, Aug. 25, 2022, no pet. h.).  School districts and community colleges should take note of this opinion for three reasons.

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