The 19-year-old student was nonverbal and was unable to communicate with his parents about his experiences at school.  As a result, the parents requested that he be equipped with a recording device while at school.  When the district denied the request, the parents sought administrative review under the Individuals with Disabilities Education Act (“IDEA”).

The hearing officer determined that the recording device would provide “no demonstrable benefit” to the student and, therefore, it was not required under the IDEA.  The parents sued the school district, arguing that the district denied a reasonable accommodation to their child in violation of the IDEA, the Americans with Disabilities Act (“ADA”), and Section 504 of the Rehabilitation Act.

We all know that schools are required to provide a free appropriate public education (“FAPE”) to students with disabilities who are in need of specially designed instruction.  We also know that Section 504 and the ADA require districts to provide reasonable accommodations to disabled students that will allow them to fully access the benefits of their education.  So, the main issue was whether allowing the student to record his activities at school was a reasonable accommodation.

The First Circuit Court of Appeals said no.

Apparently, the student had attended school in the district for twelve years without a recording device and was happy at school.  There was no evidence of a substantial safety concern requiring the device.  In addition, the student was receiving FAPE and made “continuous and significant progress” without the device.

The bottom line:  the hearing officer concluded that it was not necessary for the student to wear a recording device to benefit educationally and receive FAPE.

Unfortunately for the parents, they did not appeal that specific finding by the hearing officer.  The Court concluded that they waived that issue on appeal.  Because the parents could not prove that the student required the recording device to benefit from his education, the ADA and Section 504 claims failed as well.

The case is Pollack v. Reg'l Sch. Unit 75, 886 F.3d 75 (1st Cir. 2018).

DAWG BONE:  REQUESTED ACCOMMODATIONS SHOULD BENEFIT THE STUDENT BY PROVIDING GREATER ACCESS TO EDUCATIONAL SERVICES. 

This recent case out of Irving Independent School District, Bhombal v. Irving ISD, is a great case study regarding the U.S. constitutional amendments and school district liability.  Z.B. was an elementary student who reportedly had a bomb in his lunch box.  Two weeks later, the principal met with Z.B. and his father, and Z.B. was issued a one-day in-school suspension.  The principal called Z.B. in for a second meeting a few days later, this time without notifying the parent, which was against his parents’ wishes.

When the father learned that Z.B. had been questioned a second time, he removed Z.B. from school.  Later that afternoon, Irving police went to their home and issued the father a criminal trespass warning that prevented him from setting foot on district property.

The lawsuit did not provide details about what led to the trespass warning.  We suspect there is a bit more to the story there.  Not long after, Z.B. was involved in an altercation with some of his classmates.  As a result, he was assigned to a different campus the following school year.

The parent sued the district and the principal on behalf of Z.B. and on his own behalf.  Because it alleged violations of the U.S. Constitution, the suit was filed under the federal statute 42 U.S.C. § 1983.  Section 1983 lawsuits can be brought against the government or a governmental employee acting “under color of” state law.  Both the district and the principal sought dismissal of the suit.  Essentially, they argued that the suit failed to state sufficient facts to support any constitutional claims.

Fourth Amendment.  The Fourth Amendment claim alleged that the father was subjected to an “unreasonable arrest” through issuance of the trespass warning and Z.B. was “unreasonably detained” when he was questioned about the bomb incident.  The Fourth Amendment protects people from unreasonable searches and seizures, including arrests without probable cause.  According to the Court, however, the issuance of a criminal trespass warning and principal’s questioning of Z.B. about the bomb incident did not constitute arrests.  Because neither Z.B. nor his father were “arrested,” the Fourth Amendment claims were dismissed.

Fifth Amendment.  The Fifth Amendment provides a right against self-incrimination, like when people “take the 5th” rather than implicate themselves in some criminal matter.  The suit claimed that the District ran afoul of Z.B.’s Fifth Amendment rights by subjecting him to “repeated interrogations with no good faith basis” and without providing him a Miranda warning (i.e., you have a right to remain silent, … etc.).

The Fifth Amendment, however, only applies to “custodial interrogations,” which involve questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of their freedom in any significant way.  Z.B.’s Fifth Amendment claims failed because he was never questioned by law enforcement.  In addition, the Fifth Amendment does not provide a private cause of action.  Rather, the only remedy for a Fifth Amendment violation is that evidence obtained during an improper interrogation is excluded in a criminal trial.

Fourteenth Amendment’s Equal Protection Clause.  The suit next claimed that Z.B.’s Fourteenth Amendment rights were violated because he was subjected to discipline unequal to that imposed on his peers because of his race and religion.  To state a claim of racial and religious discrimination under the Equal Protection Clause and section 1983, there must be allegations that (1) the student received treatment different from that received by similarly situated individuals and that (2) the unequal treatment stemmed from a discriminatory intent.  This claim failed because the suit did not sufficiently allege that Z.B. was treated differently from any other similarly situated student, or that Z.B.’s transfer to a different elementary school was discriminatory punishment for the May 2017 altercation.  There were also no facts to show any discriminatory animus based upon Z.B.’s race or religion.

Ultimately the Court granted the motion to dismiss.  Despite some effort at creative lawyering, the suit simply failed to state facts that amounted to constitutional violations.  The Court did, however, grant the parent one more opportunity to try to state a Fourteenth Amendment discrimination claim on behalf of the student.  It remains to be seen whether he will be able to do so.

DAWG BONE:   THE CONSTITUTION PROVIDES PROTECTIONS, BUT NOT EVERY INSULT OR INDIGNITY WILL IMPLICATE THE U.S. CONSTITUTION.

Tomorrow:  Parents want student to carry a recording device to school.

Senior prom!  It’s supposed to be so magical.  Not so much for one Minnesota school this year.  This particular case illustrates an important point about being even-handed when it comes to investigations of student misconduct and discipline.

The case involved a high school senior who was suspended indefinitely for his behavior at a school dance.  The student readily admitted that he came to the dance drunk, “danced aggressively,” and ran twice from police.  However, he adamantly denied allegations that he groped one girl and sexually harassed another.  Student sues.

Slam dunk for the school, right?  Not so fast.  Doe alleged that the school’s investigation into these allegations and its disciplinary process were flawed and discriminatory in violation of Title IX, Title VI, and state law.  At the outset of the case, the student asked for an injunction to prohibit the school from imposing the suspension.

Apparently, the student was a pretty good athlete, earning himself a full Division 1 athletic scholarship.  He argued that the disciplinary action jeopardized his scholarship and that he would not be able to afford college without it.

To support his discrimination claims, the student presented statements from two student witnesses who revealed that when they each reported a white male student for sexual assault and sexual harassment, the school took no action against the perpetrators and discouraged them from pursuing their complaints.

As a result, while the court declined to enter an injunction to halt the suspension, the court allowed the case to proceed.  In doing so, the court offered this admonition:

The Court will deny Doe’s motion for a preliminary injunction, but the message should be clear: victims of sexual misconduct, those who stand accused, and society as a whole all benefit from ensuring that allegations of sexual misconduct are handled in a non-negligent and non-discriminatory manner. Two of Doe’s claims, that similar allegations against non-African-American students were handled differently and that he was improperly discouraged from responding to the claims of sexual misconduct, merit a more thorough review after the facts are developed in discovery.

The case is Doe v. The Blake School, No. CV 18-919, 2018 WL 2108204 (D. Minn. May 7, 2018).

DAWG BONE:  MAKE SURE YOU INVESTIGATE CLAIMS AND APPLY YOUR DISCIPLINE RULES FAIRLY AND EQUALLY.

Tomorrow:   A student “bomb incident,” a parent trespass warning and the Constitution.

On this fine Tuesday, we certainly hope not.  But attorneys for Kilgore ISD have likened their legal battle with local taxpayers to an episode of William Shatner’s “Nightmare at 20,000 Feet.”  This famous Twilight Zone episode follows Shatner who is the only airline passenger to see a gremlin-type creature outside of his window seat.  Was it there or not?  Has Shatner gone mad?  We may never know.

Why has Kilgore ISD entered another dimension?  It all started in June of 2015, when the Board of Trustees voted to repeal the district’s local option homestead exemption (LOHE). That repeal came just fourteen days after Governor Greg Abbott signed Senate Bill No. 1 (SB1), which prohibited districts from repealing their LOHE before the end of calendar year 2019.  Kilgore ISD, along with many other districts, saw this coming and voted to repeal the LOHE before SB1 took full effect.

Well, a group of Kilgore ISD taxpayers took issue with that and sued, demanding their money back, along with attorneys’ fees, a permanent injunction, and a court declaration that repealing the LOHE violated the law.

The dispute has been tied up in court ever since, with this latest round of briefing filed in a second appeal after judgment was entered for the taxpayers.  According to Kilgore ISD, like Shatner, it has found itself on a frightful journey as the “lone passenger” who applied the law as it was actually written and, for doing so, has been “spurned as evil and delusional.”  The briefing opens with:

You are about to enter another dimension.  A dimension of alternative realities, where sense may not be common, and statutes may simultaneously travel prospectively and retroactively.  Welcome to the Texas Twilight Zone!

This is the first legal brief I’ve ever seen that includes a formal citation to a Twilight Zone episode.  The way Kilgore ISD sees it, as it was written, SB1 was not meant to be applied retroactively.  Grammar was ignored and statutory interpretation went awry, leading to the trial court’s conclusion that the district violated the constitution when it repealed the LOHE.

Attorney General Ken Paxton, who joined the plaintiffs in the suit, was not immune from attack in this latest round.  “The Attorney General is a manipulative bully.  The attorney, General, is a manipulative bully. As you can see, punctuation and grammar matter,” wrote the school district’s attorney.  Kilgore ISD attorneys implore the appeals court to dust off their grammar books and apply the law as it is written, and not how it has been interpreted by the Attorney General and the trial court.

DAWG BONE:   GRAMMAR IS IMPORTANT, EVEN FOR APPELLATE COURT JUDGES.  ALSO, IF YOUR DISTRICT REPEALED ITS LOHE, YOU MIGHT WANT TO TALK TO YOUR SCHOOL ATTORNEY.

Tomorrow:      It’s prom season and you know what that means….

This week, as Christine Badillo passed the baton to me (Jennifer Childress) to take on the daunting task of subbing for the renowned Law Dawg while he is on a well-deserved hiatus, I decided to brush up on my grammar, editing, and style rules.  You see, not only does the Law Dawg have a ferocious legal mind, but he is also quite a stickler for grammar.  Believe you me (is that okay?), you won’t catch me misusing any of the following as long as I am a Law Dawg sub:

They’re vs. Their vs. There

Your vs. You’re

Its vs. It’s

Did you know that “irregardless” is not a word and that apparently people overuse apostrophes?  Now you do!  I’d like to think I’m adding value already.

When I was a young attorney working for the Texas Attorney General, one federal district judge in Houston used to return our legal briefing with handwritten grammar corrections in red ink.  I learned early on that grammar is important!

As I embark on my effort to not embarrass this worthy publication, I offer homage to the late Bob Dorough for teaching through song.  Dorough composed School House Rock! and all the catchy tunes in Grammar Rock, Multiplication Rock, and America Rock, among others.  Growing up in Texas, he probably heard his fair share of bad grammar.  Through his music, we learned the proper use of conjunctions, interjections, prepositions, adjectives, and nouns. Dorough recently passed, but his songs and the lessons they impart are not forgotten.

As we will see tomorrow, bad grammar may be the main reason for one school district’s legal woes, so says it’s its attorney!

DAWG BONE:  LET’S GIVE IT UP FOR BOB DOROUGH!

Tomorrow:  Fasten your seatbelts, put your tray tables up, and get ready to enter another dimension!

 I know it’s been a long week, but recall if you can that on Monday, I warned you there would come a time when I would be unable to resist an opportunity to go lowbrow.  I never thought I would be tested this soon.  Ladies and gentlemen, I fail that test today.

I offer you the case of Thomas Tramaglini, Superintendent (now on paid leave) of Kenilworth Public Schools in Kenilworth, New Jersey.  Mr. Tramaglini was arrested while taking an early morning run on the track of the Holmdel High School late last week.  Holmdel High School is in a neighboring school district, a short distance from Mr. Tramaglini’s home.  If you’ve had occasion to review your district’s GKD (Local) policy lately, you are probably surprised this was even an issue because most Texas schools have policy language specifically stating that prior approval is not required for nonschool use of outdoor, unlocked recreational facilities like tracks and playgrounds.

Mr. Tramaglini was not arrested based on his use of the track for exercise purposes, however.  He was arrested based on his use of the track for toileting purposes.  It seems the Holmdel High School staff and student-athletes had come to expect to find human feces on or near their track on an almost daily basis.  So they did what any of us would do – set up surveillance.  Superintendent Tramaglini was identified as the phantom in question and arrested.

Dawg Readers, we are not here to judge. We’re here to have a great time exploring the legal issues a scenario like this presents. As I mulled this hard luck tale over with my fellow lawyers around the firm, it became clear to me that each of us sees our own work in this story.  For example, Oscar Treviño, who handles lots of business and contracts matters, expressed concern that an incident like this may void the warranty on the track.  Jamie Turner, who practices primarily in the area of special education, turned first to the DSM-5 for diagnosis (she’s leaning toward oppositional defiant disorder).  Doug Brock’s governance take was that this was done in the interest of cost-cutting – natural fertilizer.  Personally, I wonder whether an argument can be made that this is expressive conduct.

Jokes aside, Mr. Tramaglini was charged with lewdness, littering, and defecating in public under New Jersey law.  In Texas, he would likely avoid a lewdness charge because Public Lewdness under Penal Code Section 21.07 involves sexual conduct or contact, but he could potentially be charged with Disorderly Conduct for the exposure of his anus in a public place.  The criminal implications of serial defecation under Texas law largely depend on the mental state of the person doing the serial defecating, however.

Proving an individual’s mental state is a tricky thing.  In order to truly understand what dark place Mr. Tramaglini must have been in to want to do this, though, I suspect it probably requires a fellow superintendent’s perspective. One Texas superintendent views Mr. Tramaglini as the real victim in this story: clearly, the Holmdel High School should have provided restrooms at their track for use by individuals like this man, who was clearly a “defecathlete.”

DAWG BONE: DON’T POOP ON A TRACK –  LEST YOU TOO BE REFERRED TO NOT AS A SUPERINTENDENT, BUT AS SOMETHING THAT RHYMES WITH SUPERINTENDENT.

 Serious business, as I noted yesterday. Also, totally new to me.  After doing this job for nearly fourteen years, I freak out a little when something this seemingly major surfaces and I’ve never even heard of it.  So if, like me, this is a new concept to you, read on.  Everybody else, please reserve your judgment.

Under Chapter 303 of the Texas Occupations Code, a nursing peer review committee is established by the governing body of a political subdivision (your school board) to conduct nurse peer reviews.  Generally, a school district with 8 or more nurses must have a peer review committee to conduct nursing peer reviews, but this threshold is also impacted by the number of RNs contracted with or employed.  Schools can also contract with outside entities to provide the services of a nursing peer review committee.  Some education service centers offer nursing peer review, as do hospitals, and even larger school districts will enter into agreements with neighboring districts.

The nurse peer review process itself is a legal mechanism used to evaluate nursing services, the qualification of a nurse (LVN, RN, or APN), the quality of patient care given by nurses, and/or the merits of a complaint about a nurse or nursing care.  The role of a peer review is to determine if a nurse has violated licensure rules and, if so, whether the violations need to be reported to the Board of Nursing.  A peer review committee can issue recommendations regarding any nurse or nursing care complaints, including making recommendations to a school district employer.

There are two types of nursing peer reviews.  The first is incident-based and initiated to review a specific incident or complaint.  The second type is called a “safe harbor” review and is invoked by a nurse prior to accepting an assignment or engaging in conduct that the nurse believes would place patients at risk.

The Occupations Code sets out a fairly comprehensive process for nurse peer review, including specifics of committee membership, notice requirements, confidentiality provisions, and penalties for non-compliance.  From an employment standpoint, it is helpful to keep in mind that nurse peer reviews are licensure and nursing care matters.  Non-nursing issues (e.g., attendance, unprofessional conduct) remain employment matters over which a school district employer still has authority, even during a peer review process.  While schools are not permitted to include, for example, an HR administrator on a peer review committee, the HR administrator could serve as a fact witness for the committee.

DAWG BONE: THE NURSING PEER REVIEW PROCESS IS NOT SOMETHING YOU WANT TO DO WRONG.  GET SOME ADVICE ON THE FRONT END.

 Tomorrow:  The Universe Delivers a Karmic Gift to a Struggling School Law Blog Writer…

School lawyers spend a lot of time helping clients work with the challenging few who, much like our friend from yesterday, probably shouldn’t be teaching school.  So today, let’s put the focus where it belongs:  on great teachers!

 Teachers of the Year from around the nation were honored at the White House earlier this week.  This year’s National Teacher of the Year, Mandy Manning, is a teacher in Spokane, Washington who works with immigrant and refugee students.  She had some inspiring words regarding this high honor:

“This year, I hope to engage the nation in a conversation about how we can encourage students to experiences things outside of their understanding.  When we move out of our comfort zones, visit new places, listen to others’ thoughts, and share our own opinions, we become compassionate and open.  This is the first step in creating a more hopeful, safer, and kinder society where everyone can be productive, global citizens.”

The President himself noted that “[w]e have teachers to thank for identifying and nurturing the boundless potential of America’s youth.  Sometimes, all it takes to begin the next great American success story is a teacher who really, really cares.”

My very own favorite teacher, retired Northside ISD Title I Reading teacher Carolyn Smith (who also happens to be my mom), was never a fan of “Teacher of the Year” awards.  I think this was largely because she taught for most of her career during a time when public education was widely considered a good thing and an essential component of a healthy democracy.  I don’t think my mom ever expected there to come a time when support for public education would be considered an expression of a political viewpoint, much less a subversive, minority viewpoint.  So let’s celebrate all our teachers this week, and let’s keep on celebrating the teachers of the year, and keep spreading the message that Mandy Manning put so well.  “Public schools aren’t failing. We are being successful, and we are changing lives.”

DAWG BONE:  DON’T FORGET MOTHER’S DAY IS SUNDAY!

 Tomorrow:  Nursing peer review.  It’s serious business.

 That’s right, Dawg Blog Readers, Toolbox Tuesday is also taking an early summer break.  At least it is with me (this is still Christine.)  Jennifer Childress is extremely handy so she may have a Tool or two up her sleeve, but you’ll have to tune in next week to find out.

Today, we’re going to talk about whistleblowers.  Specifically, just what does it take to be a Whistleblower with a capital “W” under the Texas law?   Texas Government Code Section 554.002, the statutory home of state law whistleblower protection, prohibits state or local government entities such as school districts from suspending, terminating, or taking other adverse personnel action against an employee who in good faith reports a violation of law by that entity to an appropriate law enforcement authority.

This may sound like a simple enough standard, but it’s packed with quite a bit of legalese, the upshot of which is that lots of people blow the whistle without “blowing the Whistle” in a manner that entitles them to protection under the state law.  For example, I casually mentioned yesterday that calling the firm’s 800 number isn’t good enough and I was really just trying to offer a clever segue into today’s topic, but a recent case out of Houston ISD illustrates the point.

In September of 2016, Ms. Jessica de Valentino made a report to the Houston ISD hotline established for purposes of anonymously reporting fraud, waste and abuse.  She reported her supervisor, accusing her of stealing state and federal funds through fraudulent time reporting.  Per the court, Ms. de Valentino was discharged later that month.  She sued the District and, representing herself, had her Whistleblower claims dismissed.  Why?  Because she did not make a report to an appropriate law enforcement authority.

The court held this hotline report did not satisfy the requirement that a report be made to a law enforcement authority based on precedent from the Texas Supreme Court that a complaint to a school district official does not amount to a complaint to a law enforcement authority. Just what is an appropriate law enforcement authority?  An entity with authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity.  Or, an entity with authority to promulgate regulations governing the conduct.  Not an internal school hotline, and for that matter not the superintendent, assistant superintendent, internal auditor, nor school board.  Had Ms. de Valentino reported to the HISD Police Department, she might have been able to make a case.

This case, while it offers a somewhat interesting example of how not to make a good faith report of a violation of law to a proper law enforcement authority, isn’t just a Whistleblower case.  Like so many plaintiffs, Ms. de Valentino raised a slew of other claims, including defamation, intentional infliction of emotional distress, negligence, all stemming from the fact that she believed there must have been an illegal reason she was let go, as so many employees do.  Nearly all her claims were dismissed by the court, not because she couldn’t prove them, but because she didn’t even articulate them in such a way as to amount to violations of law.

DAWG BONE: THIS IS WHY PEOPLE HIRE LAWYERS – ON BOTH SIDES.

 Tomorrow: Let’s Cheer Ourselves Up by Focusing on Teachers of the Year!

Hello, Dawg Readers. Jim warned you this change was coming, but I think it is important you understand from the beginning that while I will be resisting the urge to make the obvious dog gender joke in this instance, I cannot always be counted upon to resist such obvious low-hanging fruit. Consider yourselves warned.

The fact is, the Dawg will be speaking with not one but two female voices this summer: mine (Christine Badillo’s) and Jennifer Childress’s infinitely classier and smarter voice.  We are both WGTRK lawyers, both moms (we have seven children between us), and we are both hoping to make Jim proud and not get into too much trouble while he’s on vacation.

On this post-election Monday, some of you are probably considering what changes are in store for you and your school district this summer – one or two new trustees to work with or maybe even tens of millions of dollars in bond projects to commence.  If any of these prospects is as daunting to you as temporarily filling in for the legendary Jim Walsh is for me, let’s just take a moment and a deep breath and remind ourselves that this is going to be fun!  Or at least we can hope so.

Oh and btw, (Jim also promised you a younger voice) if for any reason you aren’t completely satisfied with this temporary change to Dawg Blog authorship, just don’t call Jim okay?  As we will see tomorrow, calling the 800 number doesn’t make you a whistleblower…

DAWG BONE:  A LITTLE CHANGE CAN BE A GOOD THING!

 Tomorrow: Toolbox Tuesday is also on a Break!