All posts by Christine Smith Badillo

Top Five Things I’ve Learned Writing this Blawg

Happy Friday, Dawg Readers!  If you still have your Fridays off, I hope you enjoy your day.  If not, I hope you are getting excited for the start of a great school year!  I mentioned earlier this week that Jim is back, and starting Monday, he’ll be back on the Blawg.  I have truly enjoyed covering for him a little this summer, and I hope not too many of you have cancelled your subscriptions as a result.  Writing for the Dawg Blawg has reminded me for the thousandth time how great Jim is.  Not only is he an exceptional speaker, but he also writes about the law in a way that makes it seem easy and fun to read about.  Which it is not.  Unless Jim does it.

One of the things Jim does best is boil a long and complicated case or legal argument into the salient points that are worth knowing about.  In speaking, he often does this with a top ten or top five list.  So, to cap off the summer and welcome Jim back, here are the top five things I learned on the Blawg this summer:

5. That the less time you give people to edit your work, the less inclined they are to worry about your crude jokes.

4. That Berdoll Farms Pecan store in Del Valle has wifi. Long story, but I missed a bus back from Houston once and had to write my entry from the bench on their front porch.

3. That capitalization is hard. Is it the State?  Or the state?  The court or the Court?  These are time-consuming questions to answer.  And don’t get me started on capitalizing the headlines.  I’ve just been guessing.

2. That you really can get sued for anything. Or grieved at a minimum.

1. That I work for a law firm of kind and generous people who have given me lots of encouragement and support, who have tolerated my whining, and who have told me all your crazy (and privileged) stories this summer in support of this effort.


Is Your Mugshot Confidential?

No it is not.  In fact there are a number of provisions in Chapter 109 of the Business and Commerce Code addressing the commercial availability of mugshots and other criminal record information.  You know who thinks your mugshot should be confidential?  You guessed it, the Pooperintendent.  On this, my penultimate installment of the Blawg, I thought it would be appropriate to bring you an update.

Thomas Tramaglini, the erstwhile Superintendent of the Kenilworth School District in New Jersey, is suing the Holmdel Township Police Department for (you guessed it again) ONE MILLION DOLLARS because the HTPD allegedly “unlawfully took [his] photograph and distributed and disseminated the ‘mug shot’ to third parties, including the media, with the intent to harm…”

For those of you who don’t recall Mr. Tramaglini and can’t guess what someone would have to do to earn such a moniker as Pooperintendent – it’s to serially poop on the track of a high school in another school district until busted in a sting operation by the local police department.  In this case, the Holmdel Township Police Department, now being sued.  Whether Mr. Tramaglini will ultimately prevail in his lawsuit will be up to the New Jersey courts to decide.


 Tomorrow:  Farewell, Dawg Blog Readers!

Student Expression

In rereading Tinker, I couldn’t help but be struck by this passage:

It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance.  The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism.  The order prohibiting the wearing of armbands did not extend to these.  Instead, a particular symbol – black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam – was singled out for prohibition.

It's hard to imagine a time when a symbol of Nazism would raise no eyebrows but a peace sign would have administrators convening special meetings and developing regulations on the fly.  Picking and choosing which political statements were acceptable and which were not certainly made the District’s position in Tinker much less defensible.

These days, students have no shortage of opinions and practically unlimited means at their disposal to express them.  Despite all the technological opportunities kids have to voice their opinions, they also still like to wear them.  It’s impactful.  In fact, my friend and WGTRK-Houston attorney Melanie Charleston has a whole theory about how positive messages on people’s t-shirts can make a positive change in society.   Nevertheless, balancing and policing students’ rights to express themselves at school is a difficult and thankless full-time job.  If you haven’t already done so, there is still a little time left before school starts to review your student dress code and consider how your district treats “expressive” clothing.


Tomorrow:  A Little Update from an Old Friend

Student Expression and Cyberbullying

Happy Tuesday, Dawg Blog Readers!  This is Christine again and it is my last week writing for the Blawg because JIM IS BACK!!  We’re all excited and I’m sure he will have many great stories from his short period of freedom.  That leaves only a few more days for me to cover some of the things I’ve been meaning to get to all summer.  In today’s installment, we’re going to take a look at a classic case that has probably never been more relevant and is also a favorite of Jim’s:  Tinker v. Des Moines.

The fact is this is something I’ve been meaning to do since February when I spoke at the UT School Law Conference.  Right after I finished my speech on David’s Law and Cyberbullying, I was approached by a bright and eager Aggie law student with an excellent question about the implications of Tinker in the bullying and cyberbullying context.  Having just finished my speech, my mind was almost completely devoid of any information or higher order reasoning skills.  To wit, the only thing I could think of to do was ask this student for her business card.  Because so many of the kids are carrying them nowadays.  Well don’t you know she did have a business card and she gave it to me.  So now it’s July and this promising future lawyer is employed with Walsh Gallegos as a clerk in our Irving office, and after all these months, my brain is ready to tackle her question.

You all remember Tinker as the case in which a group of Iowa junior high and high school students decided to express their concerns about the Vietnam War by wearing to school black armbands bearing the peace sign.  The students’ accessory choice caused no disruption in their schools.  They were nevertheless disciplined for it, and that’s why they filed suit.

As you also remember, the students in Tinker prevailed at the Supreme Court.  This is how the Court summed it up:

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone.  Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.

The Des Moines school district disciplined the students out of fear of a possible disturbance, even though there was no disturbance. Courts all the way up the line upheld the District’s decision on that basis.  So it’s no surprise that the primary thrust of the Supreme Court’s analysis is on that argument, although reaching the opposite conclusion:  that the mere possibility or fear of a disturbance as a result of students’ expression does not outweigh their right to engage in it.

The Court did not spend a great deal of time on the possible collision of students’ rights to free expression with the rights of other students to be secure and let alone because there was no evidence of it in this case nor was it the basis for the District’s action.  Kaitlyn Pound’s very intelligent question was whether this notion of the collision of rights might be used to allow schools to discipline students for bullying that occurs off-campus, specifically, cyberbullying.

Let’s pause our discussion of Tinker for a moment and reflect on the current state of our jurisdiction over bullying in Texas pursuant to state law.  Bullying of the kicks and punches variety (i.e., non-cyber) that occurs on or is delivered to school, a school bus, or a school-sponsored or school-related activity is within the school’s authority to address.  Cyberbullying is within our authority to address if it interferes with a student’s educational opportunities or substantially disrupts the orderly operation of a classroom, school, or activity.

Does David’s Law adopt Tinker’s second prong when it allows (requires) us to address cyberbullying that interferes with a student’s educational opportunities?  Is that the same as protecting students’ right to be secure and let alone?  Maybe not, but it is also probably as close as we can logically get.  Off-campus cyberbullying that does not interfere with a student’s educational opportunities may not meet the underlying statutory definition of bullying.  In order to meet that statutory component cyberbullying must have some effect on the student (e.g., that they have been placed in fear of harm to person or property, that they have experienced an intimidating or abusive educational environment, or that their rights have been infringed upon in school.)  If any of those is present, it is likely that the student’s educational opportunities have been interfered with.  If none of those is present, then by definition we don’t have either cyberbullying or regular bullying.  This gets a little circular, but my point is that by adopting this definition of cyberbullying, our legislature has done its best to reconcile the need to protect students from the cruelty and ubiquity of cyberbullying without infringing on the expressive rights of others by requiring some manifestation of the damage done and generally a nexus with the educational setting.


Tomorrow: A Bit More on Tinker’s Second Prong

It’s Still Possible to Lose a Termination Case

Schools don’t lose termination cases that much.  This has a lot to do with the fact that we don’t usually take bad cases to hearing.  The case we are looking at today, North East ISD v. Riou, was not a bad case and yet, at least as of last week’s ruling, it is one the District lost after over two years of fighting and of initially winning.  If you’ve participated in a mid-contract termination hearing anytime recently, it’s likely to be something you never want to do again, win or lose. Sometimes there’s no better option.  In Riou, the District’s options were especially limited because Ms. Riou was employed on a continuing contract. As stated in Texas Education Code Section 21.154, a continuing contract continues until the teacher resigns, retires, is subject to reduction in force, returns to probationary status, or is discharged for good cause as defined in Section 21.156; i.e., nonrenewal is not an option.

Ms. Riou taught kindergarten in the 2014-2015 school year but ended the school year on FMLA leave beginning in April and returned to work the following August.  In September, the District proposed her contract for termination, setting in motion the Chapter 21 termination hearing process, which Ms. Riou lost.  She lost because the District put on evidence that she frequently showed up late to work, failed to turn in documents timely, failed to conduct reading benchmarks, failed to electronically record student progress measures, and failed to maintain the scope and sequence of learning objectives.  Ms. Riou appealed to the Commissioner and she lost there too.

The argument that ultimately carried the day on appeal was first raised in Ms. Riou’s appeal to the Commissioner and it was this:  that Texas Education Code Section 21.156 defines good cause as “failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in this state,” and that the District put on no evidence of this.  Per the Commissioner, in order to meet the good cause standard under Section 21.156, it would “normally” require evidence in the form of witness testimony about the standards in other school districts.  However, the Commissioner still found in favor of NEISD because he concluded that, despite the lack of evidence proving up the good cause standard as stated in statute, that Ms. Riou’s conduct was “per se good cause,” essentially so obviously and unquestionably good cause that in the face of the uncontroverted facts, good cause was established as a matter of law.  If it isn’t perfectly clear to you what that last sentence means, don’t worry about it.  We shouldn’t be relying on the per good cause standard too heavily going forward anyway.

Having lost at TEA, Ms. Riou appealed to district court and won, resulting in a final judgment reversing the Commissioner’s Decision and ordering her reinstated with back pay and benefits.  So it is the District’s appeal to the 4th Court of Appeals in San Antonio that resulted in the decision in this case in favor of Ms. Riou.  The 4th Court was unpersuaded by the good cause per se arguments made by the District and accepted by the Commissioner, finding the language of Section 21.156 “unambiguous” and yielding only one reasonable interpretation:  “when a school district seeks to terminate a teacher under a continuing contract for good cause, it must present evidence that similarly situated school districts in this state would consider the teacher’s alleged conduct a failure to meet accepted standards of conduct for the teaching profession.”  This raises an important point.  Section 21.156 sets forth the good cause standard applicable in a continuing contract termination, but it is identical to the standard in Section 21.104 used for mid-year probationary contract terminations as well.  The Texas Education Code does not define good cause as it pertains to mid-year termination of term contracts, however.  The Commissioner has consistently used the common law standard defining good cause in mid-year term contract cases as “an employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances.”  It doesn’t necessarily make obvious sense why we would have different definitions of good cause in this way, but there you have it.


 Tomorrow: Tinker’s Second Prong

Did the cheerleader’s dismissal for a private social media post violate the First Amendment?

After S.J. was removed from the high school cheerleading squad, the girl’s father sued the district, the principal, two assistant principals, the cheerleading advisor, the HR director, a deputy superintendent, and the superintendent, alleging violations of S.J.’s First Amendment rights.

Shortly after making the squad, S.J. joined the others at an ice cream social and received a new team t-shirt.  The cheer advisor reminded the students not to get on social media and gloat.   By that time, S.J. had received the cheer constitution and attended meetings in which the cheer sponsor spoke to them at length about inappropriate social media use.

The principal also told the squad that there was a “zero tolerance” policy for violations of the cheer constitution and that violations would result in expulsion from the cheer squad. The cheerleaders agreed to be positive on social media.

Within hours of these admonitions, S.J. posted a video of herself with four other girls wearing their new cheer shirts and singing the lyrics of Big Sean's song “I.D.F.W.U.” to her SnapChat story.  Lyrics from the song that S.J. posted included:  “I don't f*** with you, you little stupid a*** b****, I ain't f**** with you.”

Of course, someone saved a copy and showed it to school authorities.  All five were removed from the team.  However, the four other girls who had not actually posted the video, were reinstated after completing 50 hours of community service, reading an apology to other team members, and writing a statement on appropriate social media use.

Initially, S.J. was not given the option of reinstatement, but after several appeals she was offered a similar deal as the other four.  If she completed all of the same conditions, she could be reinstated.  The parents rejected the offer, instead, demanding her unconditional reinstatement. During the negotiations, school officials observed S.J. to be “unrepentant” and disingenuous about how the video was posted.

Was the cheerleader’s off-campus social media post protected by the First Amendment?

Unlikely.  The Supreme Court has recognized four circumstances in which schools may regulate student speech.

1. speech that “materially and substantially” disrupts the work and discipline of the school.

2. vulgar or offensive speech.

3. “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school,” such as a school newspaper.

4. speech advocating illegal drug use, or the threat of the physical safety of students.

The Court found S.J.’s speech to fall within category #2, vulgar and offensive.  According to the Court, “when the speech reached other students at the school, it was brought to school officials' attention and some viewed it as not only boasting but possibly bullying to girls who did not make the team.”

The school was able to show that S.J.'s SnapChat video had the effect of materially and substantially disrupting the work and discipline of the cheer squad in a variety of ways. The video undermined the authority of the cheer coach and the goal of the cheer squad to improve the squad's reputation.  The district’s actions were not unreasonable.  The Court stated:

S.J. has no constitutional right to be a cheerleader and, although the school cannot infringe upon S.J.'s constitutional rights, the school can impose certain restrictions on her right to be on the squad. The school considers cheerleaders to be the face of Mountain Crest athletics. Because of their high profile, Mountain Crest holds cheerleaders to a higher academic and conduct standard than other athletes…Cases involving suspension are inapplicable to this case where S.J. was merely dismissed from an extracurricular activity. In addition, by deciding that she will not comply with the school's conditions for reinstatement, S.J. has voluntarily decided not to be part of the cheer squad.

To be entitled to a preliminary injunction while litigation is pending, a plaintiff must show a likelihood of success on the merits and irreparable harm.  S.J. failed in both regards and the Court gave a pretty good indication of how the case will end up when the litigation is concluded.

The case is Johnson v. Cache Cty. Sch. Dist., No. 1:18CV57DAK, 2018 WL 3242298, at *1–14 (D. Utah July 3, 2018)


This is my last week subbing for the Dawg.  Christine picks back up next week.  It’s been an honor!

What is the Thirteenth Amendment?

S.O. v. Hinds Cty. Sch. Dist., No. 3:17-CV-383-DPJ-KFB, 2018 WL 3300227 (S.D. Miss. July 3, 2018), gets this week’s award for Most Creative Lawyering.  This case also involves a student search, but this one of pockets and not cell phones.  This all came about after a teacher accused the student, B.O., of selling bite-sized candy bars during class in violation of school policy.  According to a supporting affidavit, in searching the student’s front pockets, the assistant principal’s hands went astray and touched the student’s “privacy.”

The AP denied the allegations and said B.O. was only told to pull out his pockets, which were found to be empty.  The student’s school bag was also searched, in which officials found a purse, expo-board cleaner, feminine looking OtterBox cases, and six calculators, three of which were school property. B.O. was written up for theft of school property. B.O. alleges that all of this occurred in the presence of a city police sergeant.

Parent sued on behalf of B.O., asserting claims under § 1983 for violating the Fourth, Thirteenth, and Fourteenth Amendments as well as various state-law causes of action.

The Court believed reasonable suspicion existed to search B.O.  However, if things happened the way B.O. said they did, then the excessively intrusive nature of the search was objectively unreasonable, according to the court.  The court stated that the “the content of the suspicion failed to match the degree of intrusion” since the search of B.O.’s pockets was based only on a suspicion that he was selling candy.

What about the Thirteenth Amendment?

The suit alleged that another assistant principal violated B.O.'s Thirteenth Amendment right to be free from involuntary servitude by ordering B.O. to retrieve some of the candy he had hidden in a trashcan.  Under the Thirteenth Amendment, “[n]either slavery nor involuntary servitude, ... shall exist within the United States, or any place subject to their jurisdiction.”  According to the court, B.O. was not subjected to “compulsory labor akin to African slavery,” and the plaintiffs otherwise failed to show that the AP’s actions were objectively unreasonable.  While creative, the claim was frivolous.

B.O. also sued the police sergeant for his failure to read B.O. his Miranda rights before he questioned him.  However, the court observed that a violation of the Miranda procedures does not amount to a constitutional violation.  In addition, numerous courts have held that students facing disciplinary action in public schools are not entitled to Miranda warnings, even when the questioning occurs in the presence of law enforcement.

The suit was dismissed, except for the individual claims against the two APs who conducted the search.


Tomorrow:   Adventures with cheerleaders and social media!  YAY!

Kids these days and their darn cell phones!

After a teacher overheard one student tell another student, J.S., to “send him that picture,” the principal found J.S. in the cafeteria and took him to his office where he proceeded to search the student’s cell phone.  The principal eventually located an Instagram account that J.S. confessed he and other students maintained that “contained negative memes of a student reported to have been bullied.” J.S. received a two-day in-school suspension and the parent sued.

The issue was whether the cell phone search violated J.S.’s Fourth Amendment rights against unreasonable searches and seizures.  The court observed that the principal only needed reasonable suspicion to search J.S. and his phone. The first step in analyzing whether he had reasonable suspicion is to determine if the search was justified at its inception.

The parent alleged that the principal searched the phone after a teacher “heard J.S. tell another student to ‘send him that picture.’ ” The superintendent later sent J.S.'s father a letter stating that “several other students indicated to the administration that [J.S.] had participated in or sent pictures/memes of the [bullied] student to them at various times that were unflattering or mean in nature.” According to the court, those facts alone were not enough to establish that the principal had reasonable suspicion J.S. was engaged in cyberbullying before he searched J.S.'s cellphone.  In fact, there was no indication when the administration was alerted to J.S.’s cyberbullying.  There were also allegations that the principal had a custom of searching student cell phones without reasonable suspicion.  The court, therefore, declined to dismiss the Fourth Amendment claims against the principal.

While the superintendent did not participate in the actual search, the court ruled that he could be held liable if the evidence later showed that the superintendent knew about the principal’s propensity to search cell phones without reasonable suspicion, facilitated it, approved it, condoned it, or turned a blind eye toward it.  The suit alleged that he did and, therefore, the court declined to dismiss the suit against the superintendent as well.

The case is Simpson v. Tri Valley Cmty. Unit Sch. Dist. No. 3, No. 117CV01340JESJEH, 2018 WL 3354878 (C.D. Ill. July 9, 2018)


Tomorrow:   A Thirteenth Amendment claim.  Now, that’s a new one.

Sorta Toolbox Tuesday!

Well, this may not be the kind of Toolbox Tuesday entry you’re accustomed to, but it involves a special education lawsuit and so we’ll go with it!

The case, Smith v. Rockwood R-VI Sch. Dist., _ F.3d __, No. 17-2260, 2018 WL 3371842 (8th Cir. July 11, 2018), is a published decision out of the Eighth Circuit and so we thought it would be a good one to tell you about.   It also provides some insight on how courts are interpreting last year’s U.S. Supreme Court decision, Fry v. Napoleon Cmty. Sch., on the issue of IDEA exhaustion requirements.

In this case, the mother of a special education student sued for violations of the IDEA, the Rehabilitation Act of 1973, and 42 U.S.C. § 1983, stemming from the student’s disciplinary suspension.  The student was first suspended for ten days.  Shortly thereafter, an MDR determined that the suspension was for conduct that manifested from his disability.  Instead of readmitting the student or considering modification of his behavior intervention plan, the student received an additional 180 days of out-of-school suspension. The parent then filed a due process complaint and the parties privately resolved the case.

Plaintiffs then filed suit in federal district court, but the court dismissed the suit because the plaintiffs had not fully exhausted their administrative remedies under the IDEA.

On appeal, the main issue was whether the Section 504 and § 1983 claims were really seeking relief for the denial of a free appropriate public education, which is the test the U.S. Supreme Court established in Fry v. Napoleon Cmty. Sch.  To determine whether a complaint seeks redress for the denial of a public education, the courts “look to the substance, or gravamen, of the plaintiff’s complaint,” said the Supreme Court.

The parent argued that the Rehabilitation Act and § 1983 claims alleged disability discrimination, not the denial of a public education, but the 8th Circuit disagreed.  The court looked to the lawsuit which stated that “[a]s a direct and proximate result of the long-term suspension, G.S. was excluded from and deprived of educational benefits”, and that “G.S. was excluded from participating in, and was denied the benefits of, the program of education…” Although the suit alleged “disability discrimination” in other sections of the complaint, the gravamen of the complaint was the denial of a public education.

Because the Rehabilitation Act and § 1983 claims concerned the denial of a public education, the parent should have exhausted administrative remedies as to those claims.  In addition, simply because the plaintiffs requested monetary relief unavailable under the IDEA, that did not absolve them of their obligation to fully exhaust under the IDEA.  The court observed that “the IDEA’s exhaustion requirement remains the general rule, regardless of whether the administrative process offers the particular type of relief that is being sought.”  The parent, here, had settled the IDEA claims at the due process level rather than exhaust them and so the lawsuit was subject to dismissal.


Tomorrow:      Fun times with student cell phone searches!

Elementary school’s support of high school’s FCA program violated the Establishment Clause

You may have heard of the American Humanist Association (“AHA”).  It has sued school districts all over the country and touts itself as a non-profit organization that promotes the “separation of church and state and the constitutional rights of humanists, atheists and other freethinkers.”  And, hence, one of the latest cases brought by “Jane Zoe” (the litigious cousin of Jane Doe).

Ms. Zoe sued the school district where her two children attend elementary school, claiming that it created a culture of promoting the Christian religion, particularly with respect to a Guatemala mission trip for members of the nearby high school’s Fellowship of Christian Athletes (“FCA”).

Ms. Zoe complained about (1) a week-long supply drive for the mission trip hosted by the elementary school during school hours; (2) a flyer and emails sent to families communicating that the supply drive was “sponsored by” 6th graders partnering with the FCA; (3) that one week’s proceeds from the elementary school’s newsletter were donated to the trip; (4) that monetary donations were to be made via checks payable to the elementary school; and (5) that students and faculty who went on the mission trip used the supplies donated at the elementary school to aid in their proselytizing activities.

Ms. Zoe maintained that her children felt coerced to participate in these efforts and as non-Christians, they felt “like outsiders and unwelcome in our own community.”

The Court found in favor of Ms. Zoe, holding that the district’s actions violated the Establishment Clause.  As you know, the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” The Court applied the Lemon test addressing “three main evils against which the Establishment Clause was intended to afford protection”: sponsorship, financial support, and active involvement in the religious activity. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).

The Lemon test provides that government action does not violate the Establishment Clause so long as it (1) has a secular purpose, (2) does not have the principal or primary effect of advancing or inhibiting religion, and (3) does not foster an excessive entanglement.  All three of those prongs must be present to find no violation of the Establishment Clause.

According to the court, the district ran afoul of the Lemon test on prongs two and three.  While the purpose of supporting the FCA trip included a connection to the school’s Latin American social studies curriculum, the effect of the trip was “overtly religious” and the partnership between the elementary school and the FCA program resulted in “excessive entanglement” that included fundraising, multiple communications, and the supply drive.  The court found that this crossed the line and violated the Zoes’ constitutional rights.  If that’s not enough of a bummer, the court ruled that the Zoes were entitled to an award of attorneys’ fees and costs.  Ouch.

The case is Am. Humanist Ass'n, Inc. v. Douglas Cty. Sch. Dist. RE-1, No. 14-CV-02878-RBJ, 2018 WL 3439365 (D. Colo. July 17, 2018).


Tomorrow:  Sorta Toolbox Tuesday!