Texas Education Agency
Sunday, October 31, 2010
Re: Child bnf Parent v. Birdville ISD
Docket No. 081-R10-0810
Petitioner’s Amended Petition for Review
(1) The challenged ruling is the decision of
“I cannot find where any members of the HMS staff have violated state law, district policy, or procedures.”
Jay Thompson ruled “While I do not find violations of board policy requiring disciplinary actions for Coach Donnell, Assistant Principal Rod Bailey, or Principal Susan Taylor, there are concerns regarding how communications where made with you as a parent.”
The ruling follows grievance surrounding:
A. Failure of Susan Taylor; Rodney Bailey, Vice Principle of Haltom Middle School and Matthew Donnell, Athletics Coach and Health Educator of Haltom Middle School to document and effectively act on numerous complaints of assault and harassment involving two students throughout the school year and
B. The same staff members not informing the parent, me, of Joseph Jackson’s assault which occurred on March 4, 2010.
C. I requested relief and resolution through
investigation and disciplinary action, for the named staff and administrators,
compliant with Birdville ISD’s policies and
Relief was not granted through process of grievance, as the Birdville ISD’s Board of Trustees upheld lower level rulings. Violations of Chapters 26, 21 and 4 will be addressed.
Please see ¶ (5) for detail of fact.
(2) The date of the challenged ruling is June 24, 2010.
(3) The Petitioner, Christine Jackson, requests the Commissioner to rule and sanction in a manner which will be consistent with the Texas Education and Administrative Codes.
(4) The Commissioner of Education has subject matter jurisdiction over this case pursuant to Texas Education Code section 7.057(2)(A).
(5) 3/4/10 Joseph Jackson was
assaulted and sexually harassed by the assailant in the shower after athletics
class. This is not the first time the assailant had harassed and/or
assaulted Joseph, but it was the most extreme case. Prior complaints were
made to school staff and administration. The assailant rubbed his penis
on Joseph and threatened him with rape.
Joseph immediately reported this to Coach Donnell. The coach did not report the incident to school administration that day. The school never notified me of the incident. Joseph notified the petitioner of what happened that afternoon when I picked him up from school.
3/5/10 Joseph returned to school to find the assailant was still attending athletics and was allowed back into the public showers. Joseph called me to tell me of such and told me he would be refusing participation in class because he did not want to shower in the assailant's presence. I asked to speak to the coach; Joseph passed the phone to him.
When asked of his knowledge of the assault, the coach told the petitioner he was aware of what had happened the prior day and Joseph did not have to participate. He also told the petitioner he had spoken with the assailant and told him if he ever did this again, he would no longer be allowed in the athletics program. The coach told the petitioner he had addressed the whole team about the matter of respecting privacy. The petitioner asked if the coach intended to do anything else about the incident, he replied with a simple "no."
The petitioner, then, informed the coach she would pursue the matter outside of the school district by filing charges with the police department.
Only after the coach and the petitioner’s phone conversation, the coach promptly reported the incident to school administration and informed them the petitioner would be in contact with the police department. Assistant Principal, Rodney Bailey, contacted the police before the petitioner had a chance. The police, in turn, contacted the petitioner (within 20 minutes of her earlier phone conversation with Coach Donnell). Charges were pressed.
The days following, the assailant continued to attend school and participate in athletics. The petitioner withdrew Joseph Jackson from the athletics program since it was clear the assailant would not be removed.
Upon completion of the police investigation, the police could not move forward because Rod Bailey had reported he did not believe the incident occurred. This is documented in the police report. Rod Bailey also reported, even though this incident did not occur, the assailant is known to urinate on students in the shower because "he thinks it's funny."
The police department informed the petitioner of their hands being tied because the school administration reported the incident did not take place
In response to the investigation [of my son’s
assault] of Officer Perkins and Detective Miller, of the Haltom City Police
Department, Haltom City Municipal Court is in the process of prosecuting the
child who did this for my son under grounds of assault. Regardless of BISD’s ignoring the incident
and Rodney Bailey’s reporting (to the police
After the petitioner’s learning of how the assistant principal hindered the police investigation, the petitioner began the process of a formal grievance against the coach and the assistant principal. In the first meeting resulting from my filing grievance, Mike Shabay (of the Student Services department of BISD) stated the assailant could not be removed from the shower because he is a minority student and that would be an act of discrimination, regardless of his behavior. The administration gave the petitioner every reason to believe the investigation of the incident was over and nothing would be done because if something did happen it was an "accident." The petitioner took her son's story to the press.
On the first school day after the airing of the petitioner’s and victim’s complaint on the local news, the assailant was withdrawn from Haltom middle school by his mother.
In the days following the publicizing of the staff and administration’s poor judgment and lack of action surrounding Joseph’s assault, the school/district finally acknowledged “sexual harassment occurred” and placed the student in an alternative program for a short amount of time.
grievance procedure continued, Haltom middle school staff and BISD
administration maintain they have acted appropriately throughout the incident.
(6) develop and implement policies that clearly define the respective responsibilities of the board and the board's staff;
§ The Board of BISD did not develop [and has not developed] policies clearly defining the responsibilities of the board’s staff in reference to communication with and notification of parents in any event, including the event of a child being a victim assault under the care of the board’s staff. Therefore, when my son was assaulted, I was not notified of such. Due to policy not being implemented clearly, the staff knowingly and willfully withheld information from my, the parent of an assault victim, knowledge stating “there is not (state) requirement for notification” p. 2 letter from Susan Taylor dated April 9, 2010 and “While this incident was not about child abuse, state law does provide that teachers have up to 48 hours to report suspected child abuse.” p.2 letter from Jay C. Thompson, Ph.D. dated May 10, 2010. Because clearly defined policies were not developed and implemented by the BISD board, the board’s staff was clearly left to their own interpretation of state laws which only vaguely addressed the topic.
§ The Board of BISD did not develop [and has not developed] policies defining clearly (enough for their staff) the responsibilities of the board’s staff in response to the assault of a child under their supervision;
§ The Board of BISD has not developed policies defining clearly (enough for their staff) what constitutes violations of which seriousness;
§ The Board has not developed policies defining clearly (enough for their staff) to help their staff determine what constitutes violations of Texas Penal Code yet they (the board) require the staff (according to Birdville ISD’s Student Code of conduct) to discern between Penal violations and non Penal violations while delegating consequence
§ The Board has not developed clear (enough) definitions of “abuse” pursuant to
§ 21.006, nor has the Board clearly developed and implemented policies which clearly (enough for the staff) define the respective responsibilities of the board’s staff, as professionals, to report abuse pursuant to § 21.006 (b)
Pursuant to § 21.006 (a), my son experienced “abuse” using the meaning assigned by § 261.001, Family Code
§ Family Code § 261.001(A) mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning;
§ Family Code § 261.001(B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning;
§ Family Code § 261.001(C) physical injury that results in substantial harm to the 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;
§ Family Code § 261.001(D) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child;
Dr. Jay Thompson stated “this incident was not about child abuse” p.2 letter from Jay C. Thompson, Ph.D. dated May 10, 2010, he goes onto acknowledge “state law does provide that teachers have up to 48 hours to report suspected abuse.”
§ Joseph Jackson, my son, was a victim of abuse when the other child caused him observable impairment and psychological function.
§ Joseph was a victim of abuse when he was permitted and caused (by Matthew Donnell) to be in a situation in which he sustained additional “emotional injury” that resulted in “that results in an observable and material impairment” the day following his assault- the other child was present in class after the first report of abuse took place.
§ Joseph was a victim of abuse when he received threat of substantial harm from the perpetrator, and again when Matthew Donnell failed to make “reasonable effort to prevent an action by another person (the assailant) that could have resulted in substantial harm (per the assailant’s threats made the day prior)” to Joseph. Mr. Donnell failed to make a reasonable effort by not removing the other child from the class immediately after learning of his assault and threat of rape to Joseph and by allowing the other child’s return to the shower the following day.
As required by Texas Education Code § 21.006 (a) and (b), reports of abuse should have been filed by
§ Matthew Donnell when he learned of Joseph’s being abused by the other student and
§ Rodney Bailey and Susan Taylor upon learning that Matthew Donnell abused Joseph by not making a “reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child” and when Matthew Donnell caused and permitted Joseph to “be in a situation” where Joseph sustained “a mental or emotional injury that” resulted “in an observable and material impairment in the child's growth, development, or psychological functioning.”
Acts of abuse were denied. Abuse was not reported.
Surrounding the circumstance of my son’s assault:
§ I was not treated as a “partner with educators, administrators and school district boards of trustees” in my child’s education pursuant to § 26.001(a).
§ The educator (Matthew Donnell) and administrators (Rodney Bailey and Susan Taylor) limited my parental rights by not informing me of my son being assaulted on March 4, 2010; therefore violating §26.008(a) and §26.001(c).
§ Pursuant to Texas Education Code §26.001(b), the parental rights listed in Chapter 26 “are not exclusive. This chapter does not limit a parent’s rights under other law:” Texas Family Code 151 (§ 151.003) states that a “state agency may not adopt rules or policies or take any other action that violates the fundamental right and duty of a parent to direct the upbringing of the parent's child.” Matthew Donnell, Rodney Bailey and Susan Taylor took action which violated my parental rights defined by § 151.001(2) “the duty of care, control, protection, and reasonable discipline of the child” and § 151.001(10) “the right to make decisions concerning the child's education” when they did not inform me of my son’s assault. Rodney Bailey violated my parental right § 151.001(7) “the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child” upon his making false statement to the Haltom City Police Department (when he reported the incident did not occur).
§ Pursuant 26.008(a), I did not receive “full information regarding the school activities of a parent's child except as provided by Section 38.004” when the educator and administrators did not inform me of my son’s assault.
Through the act of not granting relief in my grievance, filed on behalf of Joseph Jackson, BISD violated one of the most visionary parts of the Texas Education Code. Both § 4.001(b) OBJECTIVES 1 AND 8 were violated. It is very clear, by the staff’s actions throughout the incident of March 4, 2010, and board’s decision in my grievance that they do not see parents as “full partners with educators in the education of their children,” nor are they interested in optimizing school campuses which “maintain a safe and disciplined environment conducive to student learning.”
In conclusion, it is my prayer and my request that the Honorable Christopher Maska upholds the statutes which ensure the ever important safety and psychological well being of children who participate in public education; upholds the sacred and law-given rights of parents; upholds the Texas Education’s Code repetitive requirements to involve parents as partners in their child’s education by acknowledging that partnership does not happen without communication and, lastly, it is my request you hold accountable those who have violated the referenced sections of the Texas Education Code.
On behalf of Joseph Jackson
Telephone: (817) 551-2211
Facsimile: (888) 735-7932
Kelli H. Karczewski
Attorney at Law
cc: Kelli H. Karczewski, Attorney at Law, via Certified Mail