Teacher fighting sanctions after tragedy
State panel gets the final say on who is ‘unworthy to instruct’
AUSTIN — The weeks after the birth of her daughter were a struggle for Wakesha Ives. Her labor had been difficult. Her blood pressure, a problem during the pregnancy, remained high. The medication caused a hacking cough that interrupted her sleep, compounding her already deep fatigue.
Still, three months after Janay was born, Ives pronounced herself ready to return to the classroom. A former Division 1 athlete, she had taken a zigzag path to education, working first in real estate and later earning an MBA. But she liked to say becoming a teacher was the best decision she’d ever made.
Part of the Ysleta school district in El Paso, Riverside High School sits less than a mile from the Mexico border. The student body is almost entirely Hispanic and overwhelmingly poor. Ives thrived there as a business and economics instructor, projecting a brand of caring discipline that students tended to remember with a mixture of fondness and respect.
On May 10, 2013, following a restless night and hectic morning, Ives piled into the car with her three youngest children. After dropping off her 4-year-old at day care, she stopped at McDonald’s for a quick breakfast and then to school, where she and her 16year-old daughter dashed into their respective classes. It wasn’t until 4 p.m., after school let out, that she discovered 5-month-old Janay still in her car seat.
A recording of the 911 call was played at Ives’ trial. In it, she can be heard screaming hysterically. Her daughter, she cried, was at day care. Witnesses said she collapsed to the ground, tearing at her hair.
Although Ives was charged with felony injury to a child, a jury found her guilty of criminally negligent homicide, a
lesser crime. The judge wondered aloud about the point even of that.
“When we think of the reasons for what we have, the theories of punishment, retribution, that doesn’t apply,” district Judge Patrick Garcia said before placing Ives on probation with no conditions. “Deterrence, that doesn’t apply. Rehabilitation, that doesn’t apply to you.”
An appeals court later agreed, acquitting Ives of all charges.
Few other tragedies twist people’s emotions into such knots and challenge their opinions of justice, empathy and forgiveness.
“If a child drowns in a pool, we consider that a tragic accident,” said Raelyn Balfour, who in 2007 left her 9-month-old son in a car parked at her Charlottesville office. But with car hyperthermia fatalities, “it’s almost as if people feel they have to do something about it.”
So maybe it shouldn’t have come as a surprise when, years after Janay’s death, with what was legally declared a horrible accident behind Ives, the Texas Education Agency informed her she still posed an unacceptable threat to the safety of Texas schoolchildren. The agency intended to fight to keep her out of the classroom.
Ives left Janay in a hot car and “the child died of heat exposure,” agency attorneys explained in a legal filing. She “is unworthy to instruct or supervise the youth of this state.”
A growing problem?
By the numbers, bad teachers are a growing problem in Texas. Investigations opened by the Texas Education Agency’s licensing division have climbed steadily in recent years. The number of inappropriate relationship cases has doubled since 2016.
Yet it’s unclear whether the state genuinely is experiencing an explosion of misbehaving educators. Texas’ growing population means the state adds about 5,000 public school teachers annually. In recent years, the percentage of total educators receiving the most serious sanctions — suspensions, revocations or voluntary license surrenders — has remained constant.
Still, the perception teachers are out of control has generated additional cases as administrators on edge report behavior seen as even slightly inappropriate, said Mark Robinett, an Austin attorney who represents educators. “There are a lot of people out there who have knee-jerk reactions to things they don’t like or necessarily understand.”
In 2017, administrators at Amarillo’s Highland Park High School were on high alert after a football coach was arrested for having sex with a student. Douglas Howard was in his sixth year of teaching art at the school when the principal accused him of a series of inappropriate interactions with students.
He was warned after he allowed a student to take a selfie with him, records show, as well as for giving a student a ride home from school without her parents’ permission. Another student said Howard had made her uncomfortable by “grabbing (her) hand without permission and using it as an example during art class of how to draw a hand.”
He was placed on leave. “Although the facts in this situation may not warrant mandatory reporting, (Howard) may have engaged in conduct that could subject him to sanctions,” the superintendent wrote to state regulators. The agency told Howard it intended to revoke his license.
At a hearing, students and colleagues described him as an inspirational teacher. The selfie student said she asked for the photo because Howard was her favorite teacher. The girl he’d driven home said it had happened only once after she asked for a lift when her parents couldn’t pick her up. Former students said if Howard commented on their physical features it was always in the context of an art lesson.
Nearly a year after Howard was placed on leave, a judge concluded no action should be taken against his license, noting he could not have anticipated administrators’ “heightened sensitivities” after the school’s sex scandal. Howard, who left Amarillo, declined comment other than to say the experience was traumatic and that he’d considered leaving the profession.
‘Not acceptable’
Ives went to bed early on May 9 but woke up late feeling groggy and with a pounding headache. The school was administering end-of-year tests and she was anxious. (Ives and her attorney, Jim Darnell, declined comment. Details are from district, appellate and administrative court documents and transcripts.) Redoing her four-year-old’s hair put her behind schedule and in a hurry to leave the house.
Trying to help out, her husband tossed Ives’ school bags in the front seat and loaded Janay’s diaper bag by her car seat in back. Ives noticed she was low on gas. After filling up and dropping off her toddler, a McDonald’s sign reminded her she’d forgotten breakfast and that she needed food to take her medications. Pulling out of the drive-through, she rushed to school. Janay slept through all of it.
She couldn’t have known it, but Ives had just checked all the boxes common to a tragic accident, said David Diamond, a University of South Florida psychology professor considered an expert in hot-car fatalities. His research has found that stress, sleep deprivation and interruptions in a wellworn routine can short-circuit a person’s ability to follow through on their plans. A change in the trigger that typically jogs a memory — Ives always placed her daughter’s diaper bag in the front seat, within her sight — increase the likelihood of a fatal failure.
Some version of that sequence occurred 494 times between 1990 and last year, according to Kids and Cars, a nonprofit that studies and works to prevent automobile-related accidents. (Another 320 children died after climbing into a hot car on their own or being placed there deliberately by an adult.) Texas accounted for 83 of the accidental heatstroke fatalities.
At Ives’ 2015 trial, the El Paso prosecutor said even if her behavior could be explained, it should not be excused: “The defense wants you to believe, ‘Oops, I forgot. It was an accident. But ‘I forgot’ is not acceptable.”
Accidental hot-car deaths raise complicated questions of morality and parenting, so the legal fallout is unpredictable. “You could have two cases with nearly identical circumstances and in one there are no charges and the other it will be murder,” said Kids and Cars Director Amber Rollins. Of 424 accidental child deaths the organization has been able to track, a third have resulted in a criminal conviction, with the remainder being uncharged or juries returning not guilty verdicts.
To those who had observed her personal devastation and knew her, convicting Ives of anything seemed unnecessarily harsh. She had no criminal record. Her oldest daughter, whom she’d raised as a single mother, had graduated valedictorian of her class. Child Protective Services quickly determined her other children were in no danger. Two dozen people testified on her behalf at her sentencing hearing.
Although criminally negligent homicide can mean a two-year prison sentence, the judge released Ives. “He understood that this woman is not a danger to anyone in the world,” her attorney said.
With every day seeming to bring a new headline describing another teacher behaving badly, the governorappointed State Board for Educator Certification, which makes the final call on teacher licensing cases, has defaulted to erring on the side of caution, said Paul Tapp, managing attorney for the Association of Texas Professional Educators. “Their attitude is: It’s better to remove someone who is innocent from the classroom than potentially keep someone who is guilty there,” he said.
That can produce disciplinary cases involving infractions that seemingly have little to do with classroom behavior.
“A teacher may have made a mistake or exercised poor judgment, and the state board now thinks it’s a reason to prevent them from teaching,” said Robinett. Because state board decisions have the final word, teachers can lose their jobs even if they are still supported by local administrators, he added.
In the effort to aggressively police the profession, regulators deploy value-freighted standards such as “unworthy to instruct” and “good moral character,” defense attorneys say. Recent Texas court cases challenging the phrases as too vague have failed, with judges concluding the state board can interpret their meanings however it sees fit.
In 2014, Texas Education Agency investigators recommended punishing Flower Mound teacher Jana Gillespie after learning she intentionally had filled out a family legal document incorrectly. Even though she had corrected it, and taught for a decade without incident, regulators said it signaled poor character that made her unworthy to instruct Texas students.
In 2016, regulators said an El Paso science teacher who’d eaten a marijuana edible in Colorado, where pot is legal, should be suspended as unworthy to instruct Texas youth. That year they also moved to punish a Dallas dance teacher who couldn’t produce a prescription for an Adderall pill she’d taken.
The board dropped the cases only after lengthy legal battles resulted in judges determining the state’s school children would suffer no harm from the teachers’ behavior.
‘She was there’
An appeals court reversed Ives’ conviction in September 2017. Prosecutors had argued that a parent who forgot a baby in a car was always guilty of a crime. But the three judges said that couldn’t be true and Ives’ behavior hadn’t risen to the level of “blameworthiness.” After another appeal from the El Paso district attorney’s office failed, her record was officially wiped clean in March 2018.
Following her conviction Ives had started teaching at El Paso Community College. But she was eager to return to Riverside. Despite her satisfaction instructing adults re-entering the workforce, she said she related better to young students struggling to overcome challenging backgrounds.
Teachers guilty of serious crimes automatically have their licenses suspended or revoked. The education agency last year canceled the license of Collin County science teacher Michael Thedford after he was found guilty of criminally negligent homicide for fatally forgetting his 6-month-old daughter in a hot car.
Yet a favorable verdict doesn’t protect educators from licensing sanctions, said Kevin Lungwitz, a teachers’ lawyer. For state regulators seeking discipline, “it’s tails they win, heads the educator loses.”
In court filings, Texas officials said they needed to bar Ives from the classroom for three more years “to show the public that the State Board for Educator Certification will severely punish any educator who neglects a child.” Citing the active case, the agency declined comment.
But Diamond, the psychology professor, said the idea that retribution can deter an accidental act doesn’t make sense.
“They think that if you announce that person will be punished, other people won’t leave their children in cars,” he said. “And that just doesn’t work.”
The hearing was held over two days in December. Many of the people who’d spoken on Ives’ behalf at her criminal trial came to Austin to testify, or submitted their written recollections.
“Every time I felt like I wasn’t good enough or I needed more, like, encouragement, she was the first one that was there,” said Kayla Frontz, a former student. “I didn’t even have to say anything. She already knew just by how my face looked that I needed someone, and she was there every single time.”
Keeping Ives from the classroom would “be a tremendous loss to the profession,” added Luz De la O, who chaired the career and technology education department where Ives taught.
Last month, Administrative Law Judge Pratibha Shenoy concluded that while state regulators could prevent Ives from teaching, they shouldn’t. Her “conduct is not an indication that (she) falls short of SBEC’s standards for moral character and worthiness,” the judge wrote. “To the contrary, (Ives) exemplifies the qualities SBEC seeks in an educator.”
Janay’s death “was an accident,” the judge concluded, “not a moral lapse or weakness.”
Last month, the education agency protested the decision. Ives “neglected a child and the child died due to that neglect,” its lawyer wrote. “This is evidence (she) poses a future risk of endangering the health or welfare of students or faculty.” The state board will make a final decision on her license this summer.