You probably heard that President Trump has created a plan to reorganize the federal government.  As part of that re-org, the Department of Education and Department of Labor may be combined into one agency and called the Department of Education and the Workforce.

While some view this as eliminating redundancy, others believe that folks at the Department of Labor have no business deciding education policy.  Meanwhile, there are a lot of unanswered questions, like who will run the department and how the merger will impact funding and enforcement efforts.

Either way, the plan will have to be approved by Congress, so it’s not a done deal.  Expect a lot of rhetoric as the plan unfolds and stay tuned!

DAWG BONE:  HAVE A GREAT WEEKEND!  SUMMER IS OFFICIALLY HERE!

Next Week:  The Dawg is taking next week off in order to celebrate our nation’s independence.  We’ll be back on July 9^th.  Have a happy and safe 4^th of July!

Just ask Craig Doyal, a county commissioner who is alleged to have engaged in discussions with other commissioners regarding a road bond without a quorum and was indicted for knowingly conspiring to circumvent the provisions of the Texas Open Meetings Act (TOMA).

TOMA requires meetings of governmental bodies to be open to the public.  It is a criminal offense under TOMA for a member or group of members of a governmental body to knowingly conspire to circumvent the Act by meeting in numbers less than a quorum “for the purpose of secret deliberations.”

Deliberations?

TOMA defines a deliberation as “a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business.”

Mr. Doyal challenged the indictment, arguing that the criminal provisions in TOMA violated his First Amendment rights.  The trial court agreed and dismissed the indictment.

On appeal, however, the court of appeals reversed.  According to the appellate court, the TOMA provision was directed at conduct and not speech.  It was not the content of the deliberations that resulted in the indictment, it was the fact that the commissioner allegedly conspired to engage in secret deliberations.

The TOMA provision at issue was also not unconstitutionally vague.  According to the court, it describes the criminal offense with sufficient specificity that ordinary people can understand the conduct that is prohibited.

The case is State v. Doyal, 541 S.W.3d 395 (Tex. App. 2018).  This case is still on appeal and will be an interesting one to watch.

DAWG BONE:  SECRET DELIBERATIONS ARE BAD.

Tomorrow:   What’s up with the Department of Education?

That is the issue facing one New Jersey school district in Hilsenrath on behalf of C.H. v. Sch. Dist. of the Chathams, No. CV 18-966 (KM), 2018 WL 2980392 (D.N.J. June 13, 2018).  The suit claims that the student, C.H., has been exposed to two videos and a worksheet that contain materials that members of the Islamic faith use to express religious beliefs.  One such expression stated: “May God help us all find the true faith, Islam. Ameen.”  According to the suit, the materials have a primary purpose of promoting and advancing the Islamic religion in violation of the Establishment Clause of the First Amendment.  According to the suit, the curriculum also gives insufficient attention to the Christian and Jewish religions.

The District sought dismissal of the suit, arguing that world religions have a profound influence on human affairs and are therefore an appropriate subject of secular study.  The students study world religions as part of their academic education in a class called World Cultures and Geography, which covers many other areas of the world, including geography, trade, art, social, economic and political structures, and everyday life.

The trial court declined to dismiss the case outright and will allow it to proceed so that the evidence can be fully developed.

What will the parties have to prove to succeed?

 The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion ....” This case will hinge on a test established by the US Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971).

Under that test, a challenged state practice does not violate the Establishment Clause if:

(1) it has a secular purpose;

(2) its principal or primary effect neither advances nor inhibits religion; and

(3) it does not create an excessive entanglement of the government with religion.

This is called the “Lemon test” and this is what the parties will focus on as they duke it out through discovery, depositions, more legal briefing, and whatever else that might ensue in the litigation.

DAWG BONE:  KEEP PROSELYTIZING OUT OF YOUR LESSON PLANS.

 Tomorrow: A sober reminder that board members can be prosecuted for knowingly conspiring to circumvent the Texas Open Meetings Act.

On June 6^th, TEA issued new guidance on the provision of services for students with dyslexia and related disorders.  This comes after the U.S. Department of Education Office of Special Education Programs (OSEP) released a report finding that TEA failed to comply with certain requirements in the Individuals with Disabilities Education Act (IDEA), including the failure to timely refer students for special education testing.  According to the guidance, this happened more often when the suspected disability was dyslexia.  Here are the highlights:

• IEP teams should consider the impact a student’s reading difficulties have on the student’s participation in the general curriculum and the types of interventions and supports necessary to appropriately serve the student.
• In doing so, the team should engage in “data-based discussions” surrounding how the student’s reading difficulty affects learning, the significance of the gap between current and expected performance, additional concerns that may further exacerbate challenges learning to read, and anticipated rates of improvement. This data and discussion should drive decisions regarding evaluations, needs, and provision of services.
• Any time it is suspected that a student requires special education or related services to provide appropriate reading supports and interventions, a referral for a full and individual evaluation (FIE) should be initiated.
• All students who are identified with dyslexia and who require special education services because of dyslexia or a related disorder should be served under the IDEA as students with a specific learning disability. Students do not need to have a second disabling condition to be considered for eligibility under the IDEA.
• When a student does not require special education services, or an evaluation determines that the student is not eligible for special education, a student may be served through a dyslexia program under Section 504 plan through a district dyslexia program.
• The guidance recognizes that some students with dyslexia reach a point where direct intervention and explicit skill instruction is no longer warranted. In that case, accommodations may be warranted, and those could be provided under Section 504.  However, if there is any suspicion that special education services are needed, the student should not be first served through Section 504.

What about Response to Intervention (RtI)?

The guidance does not do away with RtI as an option, with a few caveats.  It states that students who are struggling with reading or showing early risk factors associated with dyslexia may receive interventions through a tiered intervention model such as RtI.  The statement reads:

Tiered intervention programs play an important role in providing quick access to research-based interventions for struggling students. These systems often serve as an ongoing support for students whose reading difficulties are not the result of a disability under the IDEA or Section 504. RtI might also be an important component of the individualized evaluation used by LEAs for determining whether a student has a specific learning disability (SLD) under the IDEA.

The guidance cautions, however, that students in RtI must be carefully monitored, and timely referral for evaluation under the IDEA be made when, after an appropriate amount of time, the student is not making adequate progress.  This referral can occur at any point in the RtI process, and RtI is not required prior to any referrals for special education services. RtI and initiation of initial evaluation can also occur simultaneously.

Bottom line?

LEAs must be mindful that dyslexia is considered a learning disability under the IDEA and is included within our Child Find mandate. Every LEA has an obligation to refer any student who is suspected of having a disability and needing special education services for an evaluation under the IDEA.  Recall that special education is defined as specially designed instruction, which is defined as modified content, methodology, or delivery of instruction.  Dyslexia intervention services may be considered modified methodology or delivery of instruction. The full TEA statement can be found on TEA’s website at:

https://tea.texas.gov/About_TEA/News_and_Multimedia/Correspondence/TAA_Letters/Provision_of_Services_for_Students_with_Dyslexia_and_Related_Disorders/

DAWG BONE:  ADMINISTRATORS AND SPED PERSONNEL NEED TO BECOME VERY FAMILIAR WITH THIS NEW GUIDANCE.

Tomorrow:   Middle school geography lessons result in federal litigation.

Okay, I’ll stop shouting.  That was totally inappropriate for a Monday morning.

I was inspired because this week we will be discussing some interesting First Amendment cases and we may even bring back Toolbox Tuesday … temporarily!

First off, let’s consider whether banning citizens from posting on a school district’s Facebook page violates the First Amendment.  As one court said recently, the case law on this issue “is hardly a model of clarity.”

In this California case, Garnier v. Poway Unified School District, Dkt. No. 17-CV-2215-W(JLB) (S.D. Cal. May 24, 2018), two citizens sued on First Amendment grounds after board members blocked them from posting on the board members’ official Facebook and Twitter accounts.  The board members blocked the citizens after they posted negative comments about school district matters.

The board members sought dismissal of the suit, but the trial court let the case proceed.  The court first determined that government officials may be sued in their individual capacities for alleged constitutional violations if they were acting under color of state law.

According to the board members, they weren’t acting under color of state law, but merely posting on their personal social media accounts.  The trial court disagreed, citing a similar case in which a county resident sued the chairperson of the county board of supervisors for blocking the resident from the chairperson’s personal Facebook page.  That court ruled that the resident had alleged a valid claim.  This was the key consideration:

The chairperson’s actions in blocking the resident from posting on her Facebook page arose out of public, not personal, circumstances and the chairperson used the Facebook page for her public business.  For example, the chairperson asked constituents to visit her Facebook page and, after taking office, used the page as a “tool for governance.”     

The court in the Garnier case, thus, distinguished a personal Facebook page from one that is maintained to communicate with the public about official school district matters.  For example, one of the accounts said it was the “official page” for the board member to promote public and political information.  His account had a picture of a school district sign and listed his interests as “being accessible and accountable; retaining quality teachers; increasing transparency in decision making; preserving local standards for education; and ensuring our children’s campus safety.”  The suit claimed that the other board member’s Facebook account included a “Political Info” section, identified her as a board member for the school district, and also identified her as a “Government Official.”

According to the trial court, these allegations were sufficient to overcome the board members’ motion to dismiss.  The court stated that it was “reasonable to infer” that the board members “used their private social media accounts as a tool for governance.”  As a result, the suit adequately alleged that the board members acted under color of law when they blocked the citizens from posting messages on their Facebook and Twitter accounts.  The trial court allowed the case to proceed.

There are several insightful cases in the same vein as the Garnier case.  One is Davison v. Loudoun County Board of Supervisors, 267 F.Supp.3d 702 (E.D. Va. 2017), brought by Brian C. Davison against the chair of the county board of supervisors who blocked him from her official social media pages.  The court found a First Amendment violation for engaging in viewpoint discrimination.  That case is currently on appeal to the Fourth Circuit Court of Appeals.  The very same Brian C. Davison also sued the school district where his children attend school and several board members in Davison v. Rose, Dkt. No. 1:16cv0540 (July 28, 2017), for blocking him from official social media websites and issuing him a trespass warning.  The court in that case, however, dismissed the suit and granted the individual board members qualified immunity, because the law is not “clearly established” on these issues.

The law in this area is emerging.  As these cases make their way through the appellate courts, they may soon open the door for similar challenges.  Keep in mind, too, that these board members were sued in their “individual capacities,” which may mean personal liability if a judge or jury finds a constitutional violation.

 DAWG BONE:  THINK BEFORE YOU DELETE THAT ANNOYING FACEBOOK POST

 Tomorrow:  My effort at Toolbox Tuesday!!

It’s Friday, and after today, Jennifer takes back over.  So, I’m going to wrap up our discussion of this Boggs v. Krum ISD case, protracted as it has been, with a peek at Ms. Boggs’ claims that Krum ISD failed to properly train or supervise their employees, the superintendent and principal.  This failure, she alleged, resulted in an infringement of her constitutional rights.  If you tuned in yesterday or the day before, you saw that Ms. Boggs’ pleadings with regard to her ADA, 504, and vicarious liability claims survived the District’s motion to dismiss.  Not so today.  Her failure to train and supervise claims were facially insufficient and dismissed.

Why these and not the others?  For starters, her pleadings on these issues were themselves a little “half-hearted” and she offered no specific facts to support them.  On top of that, failure to train or failure to supervise claims can only provide a basis for Section 1983 liability in limited circumstances.  In order to make a case for failure to train or supervise, Ms. Boggs would have had to show: (1) the training procedures or supervision of employees was inadequate; and (2) there was a causal link between the failure and the violation of her constitutional rights; and (3) the failure amounts to deliberate indifference.

In order to show deliberate indifference, Ms. Boggs would have had to show that the Krum ISD Board was on notice that some gap in their training program caused their employees to violate her constitutional rights and didn’t do anything about it.  For a case like this, that is generally going to require her to show a pattern.

So that’s what she needed to at least plead in order to survive a motion to dismiss.  What she did plead was that Krum ISD has a group of policies and procedures regarding concerns about bullying and harassment of students, but that the Board failed to train and supervise employees regarding these procedures.  What she failed to plead, per the Court, was

• specifically how the District’s training program or supervision were defective or insufficient;
• any facts at all to show deliberate indifference – that the Board was on notice of inadequate training or supervision; and
• any pattern of behavior by the District.

Those claims went out the door.  What about her suit against the principal?  Does he have liability individually?

Remember when we talked about how none of us is going to strip search a student because that would be a violation of a clearly established constitutional right that would subject us to Section 1983 liability?  Well we did have that talk.  The principal in this case was not accused of strip-searching the student, but he was accused of violating her constitutional rights (by bullying her).  In response, he asserted a qualified immunity defense, which generally works unless you’ve violated a clearly established constitutional right.  The Court here declined to dismiss Ms. Boggs’ claims against the principal, and instead required her to file a reply specific to the principal’s defense of qualified immunity.  She gets another bite at the apple and he has to wait.

DAWG BONE:   KEEP YOUR EMPLOYEES TRAINED ON YOUR BULLYING AND HARASSMENT POLICIES AND PROCEDURES – SUMMER IS THE PERFECT TIME TO DO IT!

Yesterday, we examined the 504 and ADA claims raised in a student’s lawsuit against her School District.  Today, we look at claims she brought pursuant to 42 U.S.C. Section 1983 against the District and its former high school principal alleging violations of her constitutional rights under the First and Fourteenth Amendments.

Vicarious Liability

If you recall from yesterday, the student, Ms. Boggs, made a number of allegations against her high school principal in which she accused him more or less of bullying her.  Her suit against Krum ISD is premised in part on her assertion that the District should pay for the principal’s (alleged) bad acts.

Generally, an employer cannot be held liable under Section 1983 for the conduct of an employee unless that employee has been delegated policymaking authority.  When a governmental entity is sued under Section 1983, the plaintiff must allege and prove that the governmental entity itself caused a violation of constitutional rights through an “official policy,” which the Fifth Circuit Court of Appeals has defined to include:

• a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the entity’s governing body or by an official to whom such authority has been designated; or
• a persistent, widespread practice of an entity or its employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents policy.

The point is that courts do not want, for example, a school district, to be saddled with liability because of the bad acts of an employee that are not consistent with the policies of the district.

Which sounds like exactly what Ms. Boggs was angling for, but she managed to plead just enough to beat the District’s motion to dismiss.  Specifically, she alleged that Krum ISD ratified the acts, omissions, and customs of its employees, and thus she alleges she was harmed by “official policy” of the District as defined above.  How would a school district go about “ratifying” the (alleged) bad acts of its employees?  According to Ms. Boggs’ pleadings, basically they just blew off her grievance, issuing a “half-hearted” response at level two and ignoring a “letter of appeal” she submitted to the principal, superintendent, and board.  From a pleadings standpoint, that was enough to convince the Court that all the bad things Ms. Boggs alleged against her principal amounted to the official policy of the District as implemented by a policymaker.

This case is Boggs v. Krum ISD, issued June 1, 2018, out of the Eastern District of Texas, Sherman Division.  You can find the opinion online searching for it by name.

DAWG BONE:  SECTION 1983 LIABILITY IS A BIG REASON WHY LAWYERS REVIEW YOUR LOCAL POLICIES AND FREAK OUT OVER WIDESPREAD NONCOMPLIANCE

 Tomorrow:  Failure to Train or Supervise and a Splash of Qualified Immunity

Because this case is a mess.  At least it is at the pleading stage, which, as loyal Dawg Blog readers know, is the stage of litigation at which nothing has actually been proven.  It’s [maybe] all just a bunch of lies, and sometimes even those don’t amount to actionable claims.  So, let’s look at this case out of Krum ISD and imagine finding ourselves on the receiving end of these claims:

• High school student with a respiratory illness misses 17 days during the previous school year and misses 21 days during the fall semester of the current school year.
• All absences are accompanied by a parent or doctor’s note.
• School refers student to truancy court in December (this is 2014), without first having notified parent that the absences were an issue, that an attendance hearing had been held, or that the absences would result in a loss of credits.
• Student pleads no contest in truancy court, receives probation and community service, and is ordered to make up credits.
• Principal represents to court that the student will be able to “maintain her credits,” then variously tells the student and her parent that she won’t be able to maintain credits; that she’s 91 hours behind and can only catch up by paying for online courses herself; and that she can make up credits at Saturday school.
• Following the holiday break, student receives a report card reflecting “NC” or “no credit” for all of her courses. Parent makes further inquiries about credit by exam and Saturday school and receives no response.
• Principal loudly discusses the details of student’s hearing in the cafeteria and calls her a liar.
• Principal initiates a bet with several teachers and assistant principals as to whether or not the student will be able to earn her missing credits.
• Principal follows student from class to class and insults her in front of other students.
• Student’s mental health deteriorates, she exhibits high levels of anxiety, depression, fear of going to school, and ultimately overdoses on antidepressants and is briefly hospitalized.
• Student attempts to return to school but is not permitted to return and instead is forced to withdraw.
• Student, who is pregnant, files a TEA complaint against the District which is followed shortly thereafter by a CPS complaint against her.

The student, Ms. Boggs, filed suit against the District under Section 504 and under Title II of the ADA.  She also filed suit against the District and the principal under Section 1983.  Today, let’s focus on her 504 and ADA claims.

Krum ISD moved for dismissal of these claims because Ms. Boggs did not exhaust administrative remedies available to her under the IDEA, and thus argued the Court lacked jurisdiction over them and should dismiss them.  Ms. Boggs did not expressly plead a claim under IDEA, but the District argued that the allegations in her pleadings amounted to an assertion of a denial of FAPE in as many words.  I’m assuming since you all know Jim that you know what FAPE is.

In response, Ms. Boggs argued that Krum ISD couldn’t assert that her claims were for a denial of FAPE because they had previously argued (in “the due process hearing” which wasn’t even mentioned in the factual background of the opinion) that there “were no IDEA or FAPE issues.”

Krum ISD disagreed that it had taken an inconsistent position, but the Court declined to dismiss the 504 and ADA claims.  The Court reasoned that it couldn’t determine whether the District had taken an inconsistent position because nothing in Ms. Boggs’ lawsuit made any reference to the due process hearing proceedings and nothing from the record of those proceedings was included in either Ms. Boggs’ pleadings or the District’s motion to dismiss.  So the 504 and ADA claims live on – at least until the summary judgment stage.

DAWG BONE:  IT IS DIFFICULT TO PREVAIL ON A MOTION TO DISMISS, BUT THE CASE IS FAR FROM OVER 

Tomorrow:  1983

Just kidding.  Just kidding as in that’s not what we’re going to talk about today.  Global warming is real.  Whatever.  The point is, today I bring to you a cautionary tale out of Dickinson ISD, who went to the mattresses with their insurance company, Texas Windstorm Insurance Association (“TWIA”) over storm damage caused by Hurricane Ike.  No, you mean Hurricane Harvey [you’re probably thinking].  No, I mean Ike.  As in 2008 Ike.  Ten years ago Ike.

There are a couple of lessons here. The first of which is to carefully read a case before you represent to the entire Law Dawg readership that you are covering it tomorrow.  The second is that if, like Dickinson ISD, you decide to take on your insurance carrier on a coverage claim, you need to prepare yourself to fight tooth and nail for a very long time.

In this case, Texas Windstorm Insurance Association v. Dickinson Independent School District, the school district litigated a breach of contract claim against their carrier, TWIA, to the point of a five-day jury trial on the singular issue of whether TWIA breached the contract at the heart of the policy held by Dickinson ISD.  The jury concluded it did.  The trial court awarded $9.6 million dollars for the appraisal award, interest, and attorney’s fees, less prior payments, deductibles and sales tax.  TWIA immediately filed a motion to set aside this verdict and prevailed in part.  The issue was whether DISD adequately proved that the damage (roof) was caused by a “covered peril.”  This was a wind and hail policy, so “flood, surface water, waves, storm surge, tides, tidal water, tidal waves, tsunami, seiche [?], overflow of streams or other bodies of water, or spray from any of these, all whether driven by wind or not” were not covered.  Likewise, no rain damage was covered, unless caused by an opening itself caused by wind or hail.

Ultimately, the court concluded that DISD failed to conclusively establish that the direct physical losses to its covered property were caused by windstorm or hail.  For its part, DISD argued that the appraisal award determined the amount of its losses caused by the “covered peril” and that TWIA could not be permitted to dispute causation, rendering the appraisal process meaningless.  TWIA responded arguing that the appraisal process determines only damages (amounts) and not liability (causation).  Essentially the court sided with TWIA, holding that damages are properly determined by appraisers, that liability is properly determined by courts, and that DISD’s reliance on the appraisal was inadequate to establish liability.  The upshot?  More court proceedings.

DAWG BONE:  GO BACK AND READ YOUR INSURANCE POLICIES, PAYING PARTICULAR ATTENTION TO THE EXCLUSIONS.

Tomorrow: I Refuse to Commit to a Topic

I’m just back in town from the TASB Summer Leadership Institute in San Antonio where my friends and fellow Walsh Gallegos attorneys Tony Resendez and Haley Turner gave a great presentation on Board-level grievances.  Not only that, I got to visit with a number of trustees who participated in the state-mandated S.B. 1566 training on evaluating student performance.  With those things in mind, and since summer is a great time to think about updating local policies and regulations, let’s focus on another piece of SB 1566:  the changes to Texas Education Code Section 26.011 on – what else – complaints!

The changes are good.  Section 26.011(b) allows school boards to forego the pleasure of addressing a complaint concerning a student’s participation in extracurricular activities.  This is good news for your boards, because it allows them to avoid the difficult position of choosing between disappointing those students who really just want to cheer or swim, or be NHS president, and disappointing their administrators who really just want the board to support the tough choices they have to make on a daily basis.

There are a couple of exceptions.  First, the board must still hear any complaint that involves an allegation that parental rights guaranteed by Chapter 26 of the Education Code have been violated.  Second, the board must also hear any complaint related to special education services for a student with a disability.

Your FNG (Legal) policies already reflect these changes in the law.  Your local polices, however, may need to be updated to give both parents and administrators notice of the procedural changes and how they will be implemented locally.

DAWG BONE:  THE TIME TO MAKE CHANGES TO YOUR STUDENT/PARENT COMPLAINT POLICY IS NOW

 Tomorrow: Storm Damage