It’s Friday and I’m not even going to try to provide a thorough summary of the 9^th Circuit’s 88-page decision involving Idaho’s ban on transgender students participating in athletic events.  Suffice it to say the court declared that Idaho’s sweeping ban went too far and should be enjoined. As we’ve noted repeatedly in the Daily Dawg, this is an issue that judges are not going to agree on.  We will eventually get a Supreme Court ruling on the issue. Until then, we in Texas follow state and UIL rules about this divisive issue.

This one is Hecox v. Little, decided by the 9^th Circuit on August 17, 2023.  It’s located at 2023 WL 5283127.

DAWG BONE: 5^th CIRCUIT HAS YET TO WEIGH IN. 

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Texas school districts could not do what the Montgomery County Board of Education in Maryland did. Nor are there many that would choose to do it, even if they could.  Here’s how the 4^th Circuit described the district’s Guidelines for Gender Identity by which schools can develop “gender support plans for students”:

The Guidelines allow implementation of these plans without the knowledge or consent of the students’ parents. They even authorize the schools to withhold information about the plans from parents if the school deems the parents to be unsupportive.

When I read the words “they even authorize” I felt sure that the court was going to declare that these Guidelines improperly infringe on parents’ rights.  Later in the opinion the court describes the district’s position as “staggering from a policy standpoint.”

And yet, the court dismissed the parents’ lawsuit. The problem was a lack of “standing.”  These parents did not allege that they had personally suffered any injury. They did not allege that their children had “Gender Support Plans” or were thinking of pursuing one.  Therefore, there was no information about their children that was being withheld from them.

No injury. No standing. No jurisdiction.  And the dozens of advocacy groups that weighed in on this go away disappointed.  Key Quote:

Discussions about standing are inevitably wonky. But that should not obscure the importance of the underlying principles involved.

The majority opinion opens with a reference to Frederick Douglass:

Frederick Douglass famously said that our freedoms as Americans rest in the ballot box and the jury box.  So true. But when may we open each box? 

The court answers that question at the end of its opinion:

But because these parents have not alleged an injury that confers Article III standing, their remedy lies in the ballot box, not the jury box.

It’s John and Jane Parents 1 v. Montgomery County Board of Education, decided by the 4^th Circuit Court of Appeals on August 14, 2023.  Don’t be surprised if this one gets en banc review.

DAWG BONE: MAYBE MARYLAND DOES NOT HAVE A “PARENT RIGHTS” CHAPTER IN THEIR EDUCATION CODE.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: transgender students and athletics….another case.

Complaining about the coach is an American Tradition.  Maybe it’s universal, but it’s definitely part of the fabric of our culture. We all have opinions about punting or going for it on 4^th down, about taking a timeout or not, about bunting or going for the big inning.  And for sure we have opinions about who should be playing. 

In keeping with that Tradition, the parents of Andrea Place made numerous complaints about Coach Way, girls’ basketball coach. She didn’t play Andrea enough. She bullied the players. She “talked down to the team and ‘cussed.’”  She told the players that she was not their friend or their mother and they should not come to her with their problems. Ultimately, she cut Andrea from the team.

The parental complaints went through the normal channels, which ultimately involved not just Coach Way, but also the principal, the A.D., the superintendent and a couple of board members one of whom strongly supported the parents’ viewpoint.  None of that is unusual. What’s unusual is when stuff like this ends up in federal court. But it did. That’s how it got into the Daily Dawg!

After graduation, the student sued Coach Way and the Board of Education, alleging, among other things, that she suffered retaliation for the exercise of free speech rights.  The court dismissed the case in a way that I think coaches will appreciate.

The court held that the student had to prove three things: 1) she engaged in constitutionally protected speech; 2) she suffered an “adverse action,” something that would “deter a person of ordinary firmness from continuing to engage in that conduct; and 3) that the adverse action was motivated by the protected speech, at least in part. 

The court took up the second factor first, and held that dismissal from the team was an “adverse action.”  However, the case failed because of the first factor—the complaints her parents filed on her behalf were not constitutionally protected.  This was largely based on the fact that all of this was about an athletic team. Here are some Key Quotes that I think coaches will want to frame and hang on the wall:

…First Amendment protection does not extend to complaints made in the context of a sports program when the complaints are related to coaching decisions, coaching methods, coaching style, or playing time, when the speech could reasonably be forecasted to cause a substantial disruption or material interference with that program.

And are complaints likely to cause such a disruption? 

Further, these cases hold that speech that could undermine a coach’s authority or sow disunity on the team causes a substantial disruption or material interference.

The court cited cases where parental complaints do have legal protection, noting that they dealt with more serious matters, things like 1) medical care for the child; 2) implementation of an IEP; or 3) reckless driving by a bus driver.  But not for being the starting point guard. 

That won’t stop the complaining, coaches. But I thought you’d like the outcome of Place v. Warren Local School District, decided by the federal court for the Southern District of Ohio on July 26, 2023.  It’s cited at 2023 WL 4826292.  And many thanks to Loyal Daily Dawg Reader Tony Graham for tipping me off to this case!

DAWG BONE: WADDYAKNOW: NOT ALL COMPLAINTS ARE CONSTITUTIONALLY PROTECTED.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: what they did in Maryland….

How is that BIP working?  We are getting close to the time when most schools will be sending out report cards and progress reports for the first time in the 2023-24 school year.  For those students who have a BIP, the report on progress should include the BIP.  A well designed BIP should identify the behaviors that are impeding learning, and provide positive behavioral interventions, supports and strategies to address those behaviors. In our firm’s Toolbox Training we emphasize that the creation and implementation of a BIP is listed as Tool #1 for a reason. It’s the most important tool in the Toolbox. 

It may be too early in the year to see dramatic improvement in a student’s behavior, but we should be seeing some results.  Just a reminder that a BIP is just as important as every other part of a student’s IEP, and the parents should be kept up to date with how things are going.

DAWG BONE: THE MOST IMPORTANT TOOL: A BIP.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: parent complains about inadequate playing time. Can you believe it?

From the opinion of the 7^th Circuit it sounds to me like the University of Illinois did not treat Mr. Malhotra fairly.  But the court held that it did not deprive him of “due process.”  Let me tell you what happened and you can decide.

Rahul Malhotra, soon to be known as “the Plaintiff,” was minding his own business, studying in his room at the frat house while wearing noise-cancelling headphones.  He needed those headphones because his frat brothers were hosting a party that included more people than were allowed during  COVID-era restrictions, and at least one visibly intoxicated underage woman.  This violated University rules, but Mr. Malhotra claimed that he did not plan or host the party and didn’t know what was happening until his roommate got his attention.  Noise-cancelling headphones doing their job!

The University said he was responsible because he signed the frat house’s lease with the university.  But at the hearing he was given, the Plaintiff produced the lease.  He never signed it.  The suits suspended him from the University for two semesters.  He sued.

Let’s just cut to the chase—the decision of the 7^th Circuit. They ruled in favor of the University. Because they treated the Plaintiff fairly?  No. Because he did not allege enough facts to show that he had a “property” or “liberty” interest at stake. Here’s the Key Quote that shows how due process cases at universities are different from due process cases in public schools:

The problem with Malhotra’s argument is that attending a university does not automatically create a constitutional property right….This is because, unlike with grade schools, the law does not entitle each person to an education at a public university.

So the Plaintiff failed to prove the first element of his case: that he had a “property right” to continue at the University.  For a K-12 student, this element of a due process case is a given.  By state law they have a right to a free education in a public school.   Process is due before that right can be taken away through an out-of-school suspension or expulsion.

Most people think that “due process” means “be fair.” But the law is more nuanced than that, as Mr. Molhotra now understands.  Interesting footnote: when he was at the U of I he was preparing to be a “healthcare consultant” but after this experience he now “wishes to pursue a law degree.”

Of course he does.

It’s Malhotra v. University of Illinois at Urbana-Champaign, decided by the 7th Circuit on August 8, 2023. 

DAWG BONE: THE CONSTITUTION PROTECTS ATTENDANCE K-12. NOT AFTER THAT.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!

In a major ruling that HR directors need to study, the 5^th Circuit has overturned its longstanding interpretation of what is an “adverse employment action.” The new interpretation is sure to lead to more claims of workplace discrimination. 

Title VII makes it unlawful for an employer to discriminate on the basis of “race, color, religion, sex, or national origin.”  We all know that. But it would probably come as a surprise to a lot of people to know that the 5^th Circuit has routinely dismissed cases alleging discriminatory treatment unless the discrimination took the form of an “ultimate employment decision.”  If the plaintiff complained about working conditions, or scheduling, the court tossed it out. It had to be about “hiring, granting leave, discharging, promoting, or compensating.” 

Nine women who work for Dallas County sued over the County’s policy for scheduling on the weekends, which was blatantly based on sex.  The policy for scheduling who worked on the weekend allowed men to take the whole weekend off. Not women.  What were they thinking?  The court laid it out in a footnote:

The Officers’ supervisor explained that the rationale behind the policy is “that it would be unsafe for all the men to be off during the week and that it was safer for the men to be off on the weekends.”

So a man can get a nice weekend off. Not the women.  Not very subtle, Dallas!!  It doesn’t take a legal genius to recognize the sex discrimination in that.

The district court and the three-judge panel from the 5^th Circuit agreed that this policy discriminated on the basis of sex.  However, they also held that it did not violate Title VII because it only involved scheduling—it did not involve an “ultimate employment decision.”  Thus the women did not suffer an “adverse employment action.”

The 5^th Circuit took up the case en banc and reversed its longstanding precedent. The court emphasized the part of Title VII that bars discrimination with respect to “compensation, terms, conditions, or privileges of employment…”  (Emphasis added).  Just reading the text of the statute, the court concluded that they had been reading it wrong.  It clearly prohibits discrimination in a broad context.  Key Quote:

…we are mindful that the statutory phrase, “terms, conditions, or privileges of employment,” is broad.  As the Supreme Court has repeatedly stated, this language, while contractual in nature, “is not limited to ‘economic’ or ‘tangible’ discrimination,” and “it covers more than ‘terms’ and ‘conditions’ in the narrow contractual sense.”  Indeed, the Court has held that even a discriminatory and hostile work environment—when sufficiently severe or pervasive—can rise to the level of altering the terms, conditions, or privileges of employment for Title VII purposes.

The plaintiffs survived the County’s effort to toss the case out, but the County may make some other arguments as the case goes forward.  The court’s opinion notes that Title VII does not permit liability for “de minimis workplace trifles” and is not intended to “transform Title VII into a general civility code for the American workplace.”  But this case is not about a poorly timed joke in the cafeteria.  It’s about who has to work on the weekends.  Wouldn’t most of us want to have a full weekend off now and then?  

It's Hamilton v. Dallas County, decided by the 5^th Circuit en banc on August 18, 2023.  It’s cited as 2023 WL 5316716 and will soon be published in the Federal Reporter.

DAWG BONE:  IF YOUR POLICY OPENLY MAKES DISTINCTIONS BASED ON SEX, PREPARE FOR A LEGAL CHALLENGE. 

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Today’s Daily Dawg case reminds me to remind you that Restorative Discipline has a place in the public school system.  Learning how to navigate relationships is at least as important as anything else we can teach. Let me tell you a story based on a long, complicated judicial opinion from a case in New York. 

When he was a sophomore, Juneau Wang created a computer-generated tournament-style bracket that included 64 girls in the high school in Bethlehem Central School District in New York.  When I read that description of the facts in the court’s opinion I jumped to the conclusion that the boys were ranking the girls on looks.  Wrong.  There were no pictures and the boys were only asked who were the most admired or liked girls.  All of this was done privately, among the boys that Mr.Wang invited to participate in the bracket ranking. 

Of course nothing like this stays private for long. The girls found out.  The principal found out.  After investigating, he concluded that the “bracket” was not intended to harm, harass, or objectify students. However, the principal issued “remedial directives” to the student, which included him making a written apology.  Apparently there was no other disciplinary action taken.  I’m sure the “remedial measures” were intended to heal the wounds.  In the later lawsuit Juneau claimed that he did apologize, but it’s pretty clear that not everybody got the word about that.

As a junior Juneau published a book, which is unusual for a high school student. The book told the story of the bracket and the backlash it created.  One of his observations was that “if girls made a bracket of guys, guys would laugh it off.”  Later the superintendent acknowledged that this statement “rubbed her the wrong way.”  It rubs me as ignorant and wildly inaccurate.

As a senior, young Mr. Wang submitted a speech to the Speech Committee which would be selecting a speaker for the high school graduation.  The Committee chose Juneau’s speech unanimously.  But he never gave that speech and that’s how he became “the Plaintiff.”

After the identity of the graduation speaker was announced, the superintendent got some complaints.  The court said that she relied on four complaints from female students and their parents. The suit alleges that these complaints inaccurately stated that the girls were ranked based on their photographs, and that Juneau never apologized.  The suit also alleges that the superintendent also held the mistaken belief that the girls were being ranked based on appearance.  Long story short: the superintendent overruled the Speech Committee and assigned a female student to give the speech at the graduation.  The board affirmed the decision, as did the state Commissioner of Education. Then Mr. Wang became “the Plaintiff.”

The court’s opinion is long, complicated, and only based on the Defendant’s Motion to Dismiss. At that stage of the proceedings the court is required to accept the Plaintiff’s version of the facts as true.  The court dismissed the complaints about due process, both substantive and procedural.  However, the court found the allegations about retaliation for the exercise of free speech to be plausible.

So the lawsuit continues. The Plaintiff will have his day in court where he can try to prove that he suffered retaliation as well as sex discrimination in violation of Title IX.  Sigh.

What an opportunity this fact situation creates for a Restorative approach to student discipline.  In Restorative Discipline we don’t ask “who did it, what rule did they break, and what is the punishment?”  Instead we ask: what harm was done? What is needed to repair the harm?  Who is responsible for the repair?  Perhaps that’s what the “remedial measures” the principal ordered were designed to do, but it’s clear that the harm was not entirely healed.  The principal concluded that Juneau Wang and his buddies did not intend to cause harm. But they did, and it lingered two years later. 

Sorting all this out in the legal system does nothing to repair the damage to relationships.  As I read this court decision I came to believe that Mr. Wang has a lot to learn.  I’m not sure he’s going to get the right lesson from this litigation.

It’s Wang v. Bethlehem Central School District decided by the federal district court for the Northern District of New York on August 8, 2022.  It’s located at 2022 WL 3154142.

DAWG BONE: ASK THE RIGHT QUESTIONS: WHO WAS HARMED? WHAT IS NEEDED TO REPAIR THE HARM? WHO IS RESPONSIBLE FOR THAT?

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: 5^th Circuit on employment law…

Are you perfectly clear on where we are with dyslexia?  If not (or even if you are) I think today’s webinar will be helpful.  Jan Watson and Lindy French from our firm’s Irving office are conducting a webinar on the topic at 10:00 today.  It’s not too late to sign up at www.walshgallegos.com. 

Next week we offer another one that is timely and important.  Here are the particulars:

TOPIC: COMPLYING WITH 2023 LEGISLATION: DEADLINES, REPORTING REQUIREMENTS, AND DISTRICTS OF INNOVATION

PRESENTERS: ELIZABETH NEALLY and JAMESON BAKER

DATE: SEPTEMBER 19, 2023

TIME: 10:00 a.m.

It was a busy legislative session, with some new reporting requirements, and deadlines you don’t want to miss. This includes the new armed security requirements, the timelines for responding to PIA requests, and the district’s designation of the limited number of days that won’t count toward the deadline.  And as always, it’s time to consider what provisions you might want to add to your DOI plan.  Elizabeth and Jameson will take a practical approach to these issues, highlighting many of the major changes in the law. 

Sign up at www.walshgallegos.com. 

DAWG BONE: DOI PLANS SHOULD BE REVIEWED AFTER EVERY LEGISLATIVE SESSION.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: boys ranking the girls. 

We like to highlight The Toolbox around here on Tuesdays. The Toolbox is a one-day training program accompanied by a book and some laminated charts, all focused on serving students appropriately while maintaining discipline and safety.

One of the more challenging situations you will encounter is when a student commits a serious violation of your Code of Conduct, but the behavior is a manifestation of the student’s disability.  What then? 

Federal law is actually pretty specific and detailed about this and so we spend quite a bit of time on this in the Toolbox Training. But if you want the shorthand version of what to do, here it is:

DON’T PUNISH IT

 DON’T IGNORE IT

That makes sense.  If a student’s behavior is directly attributable to the student’s disability, you would not want to punish it. That would be the same as punishing the student for having a disability. We call that disability-based discrimination.

But you can’t ignore inappropriate behavior.  So the thing to do is to call for an ARD meeting and discuss what can be done to teach the student more appropriate behaviors.  That’s what BIPs are all about.

There is more to it than that, with state law playing a part as well as the federal law. But this early in the school year I think we’ll just stick with the “blocking and tackling.” Don’t punish.  Don’t ignore. 

If you are interested in a Toolbox Training, just let me know. 

DAWG BONE: THE BEHAVIOR IS A MANIFESTATION OF DISABILITY: DON’T PUNISH IT. DON’T IGNORE IT. 

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: coming attractions…

Special education litigation is often decided based on the “weight” of the evidence.  Often the court is faced with evaluations from qualified professionals that reach different conclusions. What’s true for hearing officers and courts is equally true for ARD Committees. When faced with disagreements between qualified professionals, the ARD has to weigh the evaluation data. This requires an exploration of the foundation of each report. 

Here's a good example.  A private psychologist found that the student had an SLD and required special education, while the school’s FIIE showed that she did not.  The hearing officer noted that both evaluations were done by qualified professionals.  Which one had a stronger foundation?   Here is how the court compared the private psychological with the school’s:

In addition to reviewing Brooklyn’s records and input from Brooklyn’s parents, the [school psychologist] obtained input from Brooklyn’s third and fourth-grade teachers; observed Brooklyn in her virtual classroom on two occasions; and conducted cognitive and achievement testing.  In contrast, the [private psychologist] based her conclusions on one interview with Brooklyn, one interview with the Parent, a parent input form, and a review of Brooklyn’s academic records.  Moreover, the [private psychologist’s] report gives very little attention to the potential impact of the COVID-19 pandemic and the death of Brooklyn’s grandfather on her social and emotional well-being, whereas the [school psychologist] more extensively took those factors into account.

Furthermore, the testimony of two experienced teachers tipped the scales.  Key Quote:

Even if the conclusions and testimony of the two psychologists are given equal weight, the Hearing Officer correctly found that the testimony from Brooklyn’s teachers tips the scales in favor of the district.

Between them the two teachers had 35 years of experience in special education and both had taught the child for a full year. They both testified that she was making academic progress and did not demonstrate a need for special education. It’s Brooklyn S.M. v. Upper Darby School District, decided by the federal court for the Eastern District of Pennsylvania on March 3, 2023.  It’s cited as 82 IDELR 197.

DAWG BONE: 35 YEARS OF EXPERIENCE AND FIRSTHAND EXPERIENCE WITH THE STUDENT IN THE CLASSROOM: THAT’S WEIGHTY TESTIMONY.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!