Immunity

The Texas Education Code grants broad immunity to professional employees: superintendents, principals, teachers, substitute teachers, counselors, nurses, social workers, supervisors, teacher’s aides, student teachers, bus drivers certified by the Department of Public Safety, and others whose positions require certification and the exercise of judgment and discretion. 

Although professional employees have immunity from most claims, some exceptions do expose professional employees to liability. The immunity protection does not apply in circumstances involving student discipline if the professional employee has used excessive force or acted negligently, causing bodily injury to a student.

Other exceptions include cases involving:

• Gross negligence in administering medication to a student.
• Administering medication to a student in a way that violates local policy.
• Very significantly, the operation of a motor vehicle.

In addition to these legal immunity protections, educators enjoy certain procedural protections as well. Anyone filing a state suit must provide the school employee written notice of the claim at least 90 days before filing suit. The written notice must reasonably describe the incident. If written notice is not given, the employee may be able to suspend or defeat the claim without having to argue the facts. Also, before filing suit, an individual must exhaust all district-provided remedies for resolving the complaint.  

Professional employees have qualified good faith immunity for federal claims. These generally involve civil rights violations, such as sexual harassment or racial discrimination. Educators are protected from liability for discretionary acts that do not violate established statutory or constitutional rights. These rights are considered “established” if a reasonable person under the circumstances should know about them. 

Someone filing a claim alleging violation of such a right would have to prove that the professional employee acted with “deliberate indifference” to the individual’s civil rights. The question would then be whether the employee had no reason to believe that he was violating a protected right.  

Imagine the following hypothetical situations involving educators: 

• As a teacher pushes fighting students away from one another, one student falls and breaks his arm. 
• A coach makes a student run 20 laps for acting up during practice. The student suffers heat stroke and collapses.
• After receiving an anonymous tip, a principal searches a student’s backpack for drugs but does not find any. The student feels humiliated by the ordeal. 

The teacher would have immunity if she could show she acted within the scope of her duties and that district policy did not clearly prohibit her intervention.

The exception for disciplinary negligence resulting in bodily injury would likely prevent the immediate dismissal of the coach’s case. The coach would likely have to defend himself through a long process while it was determined whether the laps constituted student discipline, and, if so, whether the discipline was excessive.

The principal would have immunity if she could show she had a reasonable belief that the student had drugs and if she could show that the search was conducted reasonably. A great deal would depend on the extent of the search—whether it was simply a backpack or whether it was more invasive, such as requiring the student to remove clothing.

The immunity protections described above all relate to whether an educator can be held financially liable in court for injuries caused by the educator. They do not address whether the educator could possibly suffer negative employment consequences for her actions. In most cases, a school district may attempt to take negative employment action even if an educator is immune from liability for her actions. There is, however, a significant exception to this rule.

Unfortunately, many educators must at some point physically restrain a student in order to maintain order or to keep the student from injuring himself or others. Recognizing this fact, the Texas Legislature granted protection in 2003 to educators placed in this position. The Texas Education Code prohibits a school district from terminating, nonrenewing or suspending a professional employee who uses reasonable physical force against a student to maintain discipline. The law applies to most public school employees, including teachers, teacher aides, counselors, nurses, bus drivers and certified administrators. The law applies both to educators working under an employment contract and also to staff who are employed at-will or without a contract. 

As a state law, this protection would supersede any local district policy or practice that conflicted with it. There have been a number of cases since the law went into effect in which districts have attempted to terminate an employee for use of force, and the commissioner of education has proven that he takes the law seriously by supporting the educator.

It is important to note that the law protects only actions taken to maintain order immediately. It does not protect an educator who violates a district’s corporal punishment policy, so there is an important distinction as to whether the action was intended to stop a student from doing something (restraint) or to punish a student for having done something (corporal punishment).

It is also important that the use of force be used only when and to the degree the educator reasonably believes the force is necessary to maintain discipline. In other words, there are limits on what kind of force can be used in what kinds of situations. What is reasonable might be subject to debate, but a number of factors have been established as significant:

• What were the age, sex and condition of the student?
• What was the possible influence of the student’s actions on others?
• Was the amount of force necessary to compel a change in the student’s behavior or obedience?
• Was the force disproportionate to the offense, unnecessarily degrading or likely to cause serious injury to the student?

Many districts have local board policies related to student restraint. The policies may vary because they are local, but they cannot conflict with state law. It is common, however, that the policy provides that an educator may restrain a student when necessary to avoid injury to the student or others or damage to district property. 

The law protects some but not all physical contact—it must be reasonable and for the purpose of maintaining order. It also prohibits some but not all district actions. For instance, it prohibits termination and suspension but does not prohibit a written reprimand, a growth plan or some other less serious response.