Behold the Texas Data Privacy Agreement.  Available online here:  https://secure2.cpsd.us/txspa/

Developed by the Student Data Privacy Consortium, this document aims to be the One Data Privacy Agreement to Rule Them All, meeting the day-to-day “tactical” privacy issues our schools face as they seek to incorporate the interwebs into their respective brick and mortar educational environments.  By creating a common agreement, they also hope to establish common expectations among vendors and avoid the need to renegotiate terms when schools seek to implement online applications.  Just like any form contract, however, it is worth getting some assistance from your legal counsel to ensure it meets the needs of your particular project, and to make sure it is accurately and appropriately tailored in each instance.

DAWG BONE:  THIS IS A PROMISING DEVELOPMENT IN STUDENT DATA PRIVACY, BUT PROCEED WITH CAUTION.  #ConsortiumGoals.

Today we’re looking at a U.S. Supreme Court case out of Minnesota concerning polling place advocacy.  The case is Minnesota Voters Alliance v. Mansky.  If any of you have ever tried to pass a bond measure or to defeat a statewide incumbent in a primary election, you probably have some idea that there are limits on the advocacy in which a school district can engage.  True.  As hosts to a great many of our state’s polling places, however, you may or may not realize that there are limitations on the political expression voters can engage in when they come out to vote.  In Texas, Election Code Section 61.010 makes it a Class C misdemeanor to wear a badge, insignia, emblem or other similar communicative device relating to a candidate, measure, political party appearing on the ballot, or to the conduct of the election, in a polling place or within 100 feet of a polling place.  The Minnesota statute at issue in Mansky contains a nearly identical ban on individuals wearing “political badge[s], political button[s], or other political insignia … at or about a polling place.” Minnesota Voters Alliance (MVA) sued the State of Minnesota over this restriction on individual expression, alleging a violation of the Fee Speech Clause of the First Amendment.   They won, 7-2.

Per the Supreme Court, there was no basis to reject Minnesota’s (and every other state’s) determination that some forms of campaign advocacy should be excluded from the polling place in order to set it aside as “an island of calm in which voters can peacefully contemplate their choices.”  So how did they still manage to lose?  “Political.”  The Minnesota statute failed to define this term and, according to the record before the Court, the Minnesota legislature uses it pretty loosely in a variety of contexts.  From a constitutional analysis standpoint, that meant to the Supreme Court that the term was insufficiently explicit and thus too vague to create a meaningful standard for the voters to follow.  Accordingly, a statute purporting to limit the right of a voter to display “politically-related” attire or accessories at a polling place amounted to an unconstitutional limit on their respective rights to free expression under the First Amendment.

DAWG BONE:  STAY TUNED FOR CHANGES TO THE ELECTION CODE BASED ON THIS NEW SUPREME COURT PRECEDENT. 

Tomorrow:  Texas Data Privacy Agreement.  Cure for Insomnia?  Sinister Plot?

Can you put an emoticon in the Dawg Blawg?  Surely in the name of summer you can.  As temperatures soar and days fly by, we must recognize we only have a few weeks until teachers return, followed in short order by the babies, large and small.  Which means we have work to do!

For those of you who are hoping to push policy updates through the Board approval process during these last few weeks, I wanted to bring to your attention an important change to the TASB policy review process.  If you are familiar with policy updates or have taken a look at Update 111, you may have noticed that TASB included a memo this time with an overview of legal issues and best practices relevant to the affected policy codes.  This is a change from their past practice in which they would identify districts with locally developed content on each affected policy and prepare a legal opinion on the impact of the changes when a district’s policy raised concerns.  With 1000ish school districts to keep track of, you can imagine that was a tremendous amount of work.  The new approach is to give everyone the information they need to consider the impact of the updates on their district’s local policies.

The short story here is: read the memo. Even if your district only has “A” versions of all the affected policies, it will be helpful to you in considering other options and the attendant legal implications of those options.  If you have a bunch of X policies, read the memo very carefully so you can be sure you know how the updates will affect your district.  Above all, read the policy updates.  It is easy to get complacent when your policies are being developed for you and subjected to a fine tooth legal comb before they even reach your inbox.  You and your board need to know what they actually say.  Sometimes they require you to develop local regulations or guidelines.  Sometimes they require you to train your staff.  Sometimes they give you a whole bunch of authority you didn’t have before.  You won’t know unless you read them.

DAWG BONE:   PAY CLOSE ATTENTION TO YOUR POLICY UPDATES AND THE INFO TASB PROVIDES. 

 Tomorrow:  A New Election Case Implicates Free Speech Rights

It may not seem like it at first glance, but that headline was a pun.  In Allen v. Rio Vista ISD, the Commissioner assumes for argument’s sake but does not expressly decide that a term contract is an “option contract.” What does that mean and who cares?  This isn’t pork belly futures we’re talking about, it’s employment futures.  And you need to know this because someday it could happen to you.

Picture this hypothetical scenario:  one of your teachers is just okay at her job.  For better or worse, she is issued a term contract for next school year and somebody goes and drops it off on her desk on April 21^st.  In that contract is the familiar language requiring the contract be signed and returned by a certain date.  Let’s say April 30^th.  Now imagine that on April 22^nd (AKA the day after she gets her contract) allegations against this teacher surface and she is placed on paid administrative leave while an investigation is conducted.  Isn’t it always the way?

We now have a hypothetical teacher who has been given a contract with a deadline for acceptance.  She now doesn’t have access to her campus and her desk where the contract sits unsigned.  Time ticks by.  April 30^th comes and goes. You hypothetically purchase but do not yet uncork the sparkling beverage of your choice.  Because, lawyers.

May 5^th, you direct her to return to work because the allegations against her are unsubstantiated.  You confirm this in writing.  In another letter on the same day, you point out that because she has failed to sign and timely return her employment contract, she does not have a job for next year.  She files a grievance the same day.  She will later purport to have also signed her contract the same day, but she doesn’t turn it in.  In fact, she only ever turns it in as an exhibit when her grievance is heard weeks later.  Administration and board both hear and deny her grievance.  What happens when she appeals to the Commissioner?

You win, she loses.  Right, right, [you’re thinking] I win, but tell me the really important thing:  does she have an option contract or not?  I can’t pop this bottle until I know! Well the Commissioner isn’t telling us.  The reason it matters, or with the right fact pattern might matter to you someday, is that the doctrine of equitable interference applies to an option contract.  Equitable interference excuses untimely exercise of an option (e.g., signing and returning a term contract) if the failure is due to more than mere neglect.  The actual Petitioner in this actual case, Jeri Allen, argued that her failure to sign and timely return her term contract was due to more than mere neglect, and was in fact due to affirmative steps the District took to prevent her from accessing, reading, signing, and returning the contract.

In analyzing her argument, the Commissioner held that it didn’t matter whether her term contract was an option contract or not, because even if the equitable interference doctrine were applied, it still wouldn’t result in a W for Ms. Allen.  Her contract was due to be signed and returned on a specified date.  Per the Commissioner, her failure to sign and return by the due date “could perhaps be categorized as mere neglect.”  More importantly, though, once notified of her default, she still didn’t return the contract for another 29 days.  That, according to the Commissioner, was willful and constituted more than mere neglect.  Ergo, the doctrine of equitable interference would not apply to require the District to enforce the contract despite Petitioner’s default. The case is Allen v. Rio Vista ISD, TEA Dkt. No. 033-R10-08-2017.

DAWG BONE:  ANOTHER VERDICT AGAINST A DELINQUENT CONTRACT SIGNER IS A GOOD THING FOR SCHOOL DISTRICTS

Tomorrow: Wildcard Wednesday

 What it is, is an otherwise boring Texas Tax Code chapter that becomes interesting only because it involves lots of money.  Potentially, for your district.  As you well know, Texas school districts rely on local property taxes to fund their operations, and school district property taxes often comprise the largest portion of a business venture’s property tax bill.  What this means is that a school district’s ad valorem tax rate can make the difference between a community gaining or losing a substantial business investment and revenue source.

Chapter 313 of the Texas Tax Code allows school districts to address this economic conundrum at the local level by entering into “Value Limitation Agreements” (also known as Chapter 313 Agreements) with qualifying business entities. Value Limitation Agreements work by capping a qualifying business’s taxable value for the purpose of calculating district maintenance and operations (M&O) taxes for the life of the Agreement—typically ten years. It is important to note that the business will nonetheless pay the interest and sinking (I&S) portion of their property taxes—used to repay principal and interest on bonds—on the full value of its property. Following the limitation period, the company must maintain a viable presence in the community, and will resume paying school district taxes on the full value of the property.

How is limiting the tax effort of a major property owner a good thing (you might be wondering)? The short answer is that entering into a Chapter 313 Agreement gives your community a competitive advantage in attracting new business in the first place.  Even temporarily limited tax effort from a new and significant property owner is better than none. A participating school district should not see its tax revenues decrease by approving a Chapter 313 Agreement because of revenue protections and supplemental payments that can be built into the Agreement itself.

Whether your District is considering a Chapter 313 Agreement for the first time or has worked through the process before, it is vital to get legal and financial advice on the deal and assistance with the process.  Fortunately, the application process can be set up to shift the cost burden to applicants (businesses) for all legal and financial consulting services related to processing an application and administering a limitation agreement.

DAWG BONE:   313 AGREEMENTS, IF DONE RIGHT, CAN BE A HUGE VALUE ADD FOR YOUR COMMUNITY.  SO CALL US AND WE’LL HELP YOU DO IT RIGHT.

 Tomorrow: Another Installment in the Saga of the Teacher Who Isn’t that Great and Doesn’t Sign and Timely Return His/Her Contract. 

Did you know a person who fears Friday the 13^th is known as a triskaidekaphobic.  Just don’t make me pronounce that.  I am not particularly superstitious.  According to an article at livescience.com,* no data exists to confirm that the number 13 is unlucky.  Still, other studies suggest that more car accidents and other mishaps occur on Friday the 13^th.

Lucky for all of us, it’s a Friday nonetheless and many of you have the day off.  So here’s to you!  Be safe out there and, for those of you who are lucky enough to have the day off, enjoy the long weekend!

DAWG BONE:  FRIDAY THE 13^TH IS STILL BETTER THAN A MONDAY!

*Melina, Remy. “Statistically Speaking, Is Friday the 13th Really Unlucky?” LiveScience, Purch, 13 Jan. 2012, www.livescience.com/17900-statistically-speaking-friday-13th-unlucky.html.

This employment discrimination lawsuit, Perez v. Corpus Christi Indep. Sch. Dist., No. 2:17-CV-187, 2018 WL 1518556 (S.D. Tex. Mar. 28, 2018), was filed against Corpus Christi ISD by a woman who was employed at-will as a senior buyer for the district.  The record showed that she was arrested at her daughter’s 18^th birthday party and charged with serving alcohol to minors, a misdemeanor.

The district’s Policy DH –Educator’s Code of Ethics – required district educators to comply with state law.  It also prohibited them from (1) treating minors in a way that might adversely affect or endanger them, and (2) furnishing alcohol or drugs to a person under the age of 21.

The day after the arrest, the woman followed district policy and reported the matter to the district.  After media reports surfaced, the woman was placed on administrative leave without pay pending an investigation.  In the criminal proceedings, she admitted guilt under a plea agreement that allowed her to avoid conviction as long as she met a number of conditions. The district then terminated her but told her that she was eligible for re-hire if she met all of the conditions in the plea agreement.

The lawsuit alleged gender discrimination and specifically that male employees who were charged with serious drug offenses were not suspended without pay and terminated as she was.  This is known as a “disparate treatment” case and it requires a showing that other employees outside of the plaintiff’s protected class (i.e., male) were treated more favorably than the plaintiff under “nearly identical circumstances.”

The plaintiff, in this case, offered a number of so-called “comparators” that included a male employee charged with assault, but the charges were dropped.  That same employee was later charged with possession of marijuana and resigned.  Three others were charged with driving while intoxicated.  None of the offenses had anything to do with minors.

To establish a disparate treatment case using other employees as comparators, a plaintiff in a discrimination lawsuit must show as follows:

[W]e require that an employee who proffers a fellow employee as a comparator demonstrate that the employment actions at issue were taken “under nearly identical circumstances.” The employment actions being compared will be deemed to have been taken under nearly identical circumstances when the employees being compared held the same job or responsibilities, shared the same supervisor or had their employment status determined by the same person, and have essentially comparable violation histories. And, critically, the plaintiff’s conduct that drew the adverse employment decision must have been “nearly identical” to that of the proffered comparator who allegedly drew dissimilar employment decisions.

According to the court, if the “difference between the plaintiff’s conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer,” the employees are not similarly situated for the purposes of an employment discrimination analysis.

The plaintiff in this case lost because her conduct in serving alcohol to minors was not nearly identical to the assault, marijuana possession, and DWI charges, mainly because her conduct had the potential to endanger minors.  Testimony showed that the plaintiff was the only employee known to have been charged with and admitted guilt to furnishing alcohol to minors.  Because the male “comparators” did not engage in similar misconduct, that evidence did not establish discrimination.  The woman failed to produce sufficient evidence of discriminatory treatment and, as a result, the trial court granted judgment in favor of the district.

Interesting note:  According to the suit, this employee worked as a buyer for the district and, yet, the Educator Code of Ethics applied to her as if she was a certified educator.  TASB’s Model Policy DH(LOCAL) includes language that applies the Educator Code of Ethics in DH(EXHIBIT) to ALL employees, not just those who are certified.  If you’re wondering if the same ethics rules apply to non-certified employees in your district, check out policy DH.

DAWG BONE:   APPLY DISCIPLINE POLICIES CONSISTENTLY FOR ALL EMPLOYEES.

Tomorrow:   Are you superstitious?

One Michigan federal judge answered no.  A group of Detroit public schoolchildren sued Michigan state officials alleging that the conditions of their schools were so poor, and so inadequate, that they have not received even a minimally adequate education. Specifically, they alleged they have been denied access to literacy on account of their races in violation of the United States Constitution.

The defendants filed a motion to dismiss, arguing that the students sued the wrong parties and the alleged harm is not actionable under the Constitution. The court agreed with the defendants.

The court first held that Michigan state authorities were proper parties generally because of state laws enacted to govern public education and state agencies and authorities involved in funding, administration, and oversight of public schools.

The students’ constitutional claims turned on whether access to literacy is a fundamental constitutional right.  Citing U.S. Supreme Court precedent, the court observed that fundamental rights are “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”

That’s a mouthful.

The problem is that courts rarely recognize new fundamental constitutional rights and are reticent to find such rights, even involving “unquestionably important necessities of life.”  The U.S. Supreme Court has stated that “… the Constitution does not provide judicial remedies for every social and economic ill.”  The trial court in the Michigan case, therefore, concluded:

The conditions and outcomes of Plaintiffs' schools, as alleged, are nothing short of devastating. When a child who could be taught to read goes untaught, the child suffers a lasting injury—and so does society. But the Court is faced with a discrete question: does the Due Process Clause demand that a State affirmatively provide each child with a defined, minimum level of education by which the child can attain literacy?  …the answer to the question is no.

The plaintiffs are certain to appeal this decision.  The U.S. Supreme Court has not weighed in on whether access to literacy is a constitutional right and so this one will be watched closely by advocates and interest groups on both sides.

The case is, Gary B. v. Snyder, No. 2:16-CV-13292, 2018 WL 3207900 (E.D. Mich. June 29, 2018).

DAWG BONE:  READING MAY BE FUNDAMENTAL, BUT IT’S NOT A FUNDAMENTAL CONSTITUTIONAL RIGHT.

Tomorrow:   Serving alcohol to minors gets school employee fired.

Texas Attorney General Ken Paxton wants to look at Fort Worth Independent School District’s human sexuality curriculum.  In fact, on June 28, 2018, he sent a letter directly to the District’s board president and superintendent requesting a copy of the curriculum.

Referring, in part, to his own opinion, Tex. Att’y Gen. Op. KP-100 (June 28, 2016), issued exactly two years earlier, Paxton stated that school districts “must grant parents access to all written records concerning their child, as well as full information regarding the child’s school activities.”

According to Paxton, the U.S. Constitution protects the fundamental right of parents to direct the upbringing and education of their children.  Texas Education Code § 26.004 provides that a “parent is entitled to access to all written records of a school district concerning the parent’s child.”

Education Code § 26.008 also states that a “parent is entitled to full information regarding the school activities of a parent’s child” except in instances of suspected parental abuse or neglect.  Still further, Texas Education Code § 28.004(j) states that a “school district shall make all curriculum materials used in the district’s human sexuality instruction available for reasonable public inspection.”  Paxton also cited the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g(a)(1)(A), which grants parents “the right to inspect and review the education records of their children.”

Paxton requested that the District deliver a complete copy of the human sexuality curriculum to the Office of the Attorney General and grant parents and the public full access to it or “risk legal liability” under the Texas Public Information Act which provides a criminal penalty for refusing to provide access to public records.  Paxton gave the district ten days to comply.

DAWG BONE:   AG WANTS PARENT ACCESS TO RECORDS.

Tomorrow:      Do students have a constitutional right to learn to read?

Theft, strip searches, sex (ed), drugs and alcohol (policy), Friday the 13^th … sounds like the makings of a sizzling summer blockbuster, doesn’t it?  Nope.  It’s just another week in the life of a school lawyer!

Let’s start out with breaking news out of the Fifth Circuit Court of Appeals, which did not take kindly to an alleged strip search of an entire middle school choir class.

According to the suit, $50 went missing and the middle school’s assistant principal was called to investigate.  The AP took all 22 girls to the female school nurse to conduct strip searches.  The searches involving taking each one to the bathroom, where the nurse checked the waistband of the girls’ panties, loosened their bras, and checked under their shirts.  The suit alleges that the girls had to lift their shirts so they were exposed from the shoulder to the waist.  No parents were notified.  No money was found.   Parents sued claiming constitutional violations, but the trial court dismissed the claims.

On appeal, the issue was whether the suit stated enough facts to hold the district liable for the AP’s actions.  Remember, to state a claim for a constitutional violation against a school district under 42 U.S.C. § 1983, a lawsuit has to allege that the constitutional violation resulted from an official policy, custom, or practice that was the “moving force” behind the violation.

A refresher on student searches:

• To search a student’s person, a school official must generally have reasonable suspicion that the search will reveal evidence of a violation of school rules or the law.
• The search must be reasonably related in scope to the circumstances which justified the search. The scope will be permissible when it is not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

According to the 5^th Circuit, when the search is of the student’s underwear, additional requirements apply.  That is, a search of a student’s underwear is “impermissibly intrusive unless the school officials reasonably suspect either that the object of the search is dangerous, or that it is actually likely to be hidden in the student’s underwear.”

So, in this case, the AP violated “clearly established law” against all 22 of the students unless the AP “reasonably suspected” that the missing $50 cash (1) would be found on that particular student’s person and either (2) would be found specifically in that girl’s underwear or (3) would pose a dangerous threat to students.  It was undisputed that the searches failed all three conditions.

Okay, so the AP’s search may have been flawed, but how does that translate into school district liability?

The parents alleged a “failure to train” theory of liability that is recognized by the U.S. Supreme Court.  Under that theory, a district can be liable if there is such a widespread pattern of violations that the need for training should have been obvious to district policymakers.  Even if such a widespread pattern didn’t exist, deliberate indifference to the students’ constitutional rights can still be inferred if the risk of violations was or should have been an “obvious” or “highly predictable consequence” of the alleged training inadequacy.

The lawsuit claimed that the district provided no training to its employees regarding student searches.  The appeals court concluded:

Here, the alleged facts, taken together and assumed to be true, permit the reasonable inference—i.e., the claim has facial plausibility—that the risk of public officials’ conducting unconstitutional searches was or should have been a “highly predictable consequence” of the school district’s decision to provide its staff no training regarding the Constitution’s constraints on searches.

The case was allowed to proceed.  Keep in mind that this case is in its very early stages.  That’s why the court “assumed” all of the facts to be true and referred to the “plausibility” of the claims.  Whether the district actually failed to provide training and whether the risks of unconstitutional searches was or should have been known and obvious to district policymakers will be the subject of discovery and more legal briefing as the case moves forward.

Suffice it to say, this case is must-reading for school administrators and policymakers.  It would behoove districts to look at the training provided to administrators and staff on student searches and all student constitutionally-protected rights.  Regular, thorough, and well-documented training is crucial in defending against these types of “failure to train” lawsuits.  The case is Littell v. Houston Indep. Sch. Dist., No. 16-20717, 2018 WL 3149148 (5th Cir. June 27, 2018).

DAWG BONE:  TRAINING EDUCATORS IS ALWAYS A GOOD INVESTMENT.

Tomorrow:  AG Ken Paxton sends another letter to Fort Worth ISD.