Yesterday we told you about the facts and the district court decision in the case involving a teacher who objected to the school’s “pronoun policy.”  Today: the Circuit Court’s ruling.

The 7^th Circuit affirmed the lower court’s decision, holding that Mr. Kluge was properly terminated for his refusal to comply with the school’s policy.  Since his objection to the pronoun policy was based in his sincere religious beliefs, the district was obligated to seek a way to accommodate his view. The district did that, but ultimately concluded that there was no accommodation that was satisfactory to the district.  The court upheld the lower court’s analysis of the legal standard—that the district is not obligated to endure an “undue hardship” in its efforts to accommodate, and that it doesn’t take much to reach “undue hardship.” 

The critical factor, as the 7^th Circuit viewed it, was that students were being harmed by Mr. Kluge’s refusal to follow the policy.  Key Quotes:

The last-names-only practice conflicted with the school’s philosophy of affirming and respecting all students because the undisputed evidence showed that the accommodation resulted in students feeling disrespected, targeted, and dehumanized, and in disruptions to the learning environment.

Title VII does not require an employer to retain an employee who harms the employer’s mission.

Brownsburg has demonstrated as a matter of law that the requested accommodation worked an undue burden on the school’s educational mission by harming transgender students and negatively impacting the learning environment for transgender students, for other students in Kluge’s classes and in the school generally, and for faculty.  Title VII does not require that employers accommodate religious practices that work an undue hardship on the conduct of the employer’s business; that sometimes means that a religious employee’s practice cannot be accommodated.

This was a 2-1 decision with both opinions being lengthy, sort of as if the judges expect this case to be heard by a Higher Court.  That’s a good bet.

But for now, this is the highest level decision we have on this particular issue. Moreover, it very likely aligns with the amended Title IX regulations we will see in final form soon.  It’s Kluge v. Brownsburg Community School Corporation, decided by the 7^th Circuit on April 7, 2023.  It’s cited at 2023 WL 2821871. 

DAWG BONE: WHAT’S YOUR SCHOOL’S POLICY OR PRACTICE?

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

Tomorrow: get that contract signed and returned!

We now have a Circuit Court decision on how a school’s pronoun policy applies to a teacher who has religious objections to it.  Here are the facts that led to the 7^th Circuit’s recent decision.

THE NAME POLICY.  The Brownsburg Community School Corporation in Indiana adopted a policy that required teachers to refer to students by the name that was logged into a school database.  Transgender students could change their first names in the database with parent permission and a letter from a health care professional.  They could also change their gender status and specify what pronouns should be used with them.

THE LAST NAME ONLY ACCOMMODATION. Mr. Kluge, a music/orchestra teacher, refused to comply with this policy, citing his religious beliefs. Mr. Kluge believes that transgenderism is a sin, and that it would be wrong for him to encourage or support it.  School administrators agreed to accommodate Mr. Kluge’s concerns by allowing him to refer to students by last name only.  There would be no “Mr., Ms., or Miss” and no first names.  Adam Smith would be Smith.  Angela Jones would be Jones.

THE CONCERNS.  A teacher expressed concerns about this accommodation. This teacher was also the faculty advisor to the Equality Alliance, a student club that met weekly to discuss issues that affected students who were gay or transgender. He reported that students and some parents were “not exactly happy about” this “last name only” practice. In the meetings of the Equality Alliance some of the students also expressed their displeasure. They reported that they felt insulted and disrespected, and they were sure that Mr. Kluge’s “last name only” practice was due to the presence of transgender students in his classes. So they felt “isolated and targeted” which is what the school’s “name policy” was designed to prevent.

FORCED RESIGNATION.  About halfway through the school year the administration decided that the “last name only” accommodation was not working.  Mr. Kluge was told that he needed to either comply with the name policy, resign, or be terminated. He resigned, and then sued, claiming that the district discriminated against him based on his religion, by failing to accommodate his sincerely held beliefs.

THE LEGAL STANDARD.  Employers are required to “reasonably accommodate” the religious beliefs of employees. An accommodation is reasonable unless it would cause an “undue hardship” to the employer. So this case came down to a simple question: did the “last name only” accommodation create an “undue hardship” for the school district?

In 2021, the federal district court in Indiana held that it did. Key Quotes:

Mr. Kluge’s religious opposition to transgenderism is directly at odds with BCSC’s policy of respect for transgender students, which is grounded in supporting and affirming those students.

[The last name only accommodation] conflicted with its philosophy of creating a safe and supportive environment for all students. 

BCSC is a public school corporation and as such has an obligation to meet the needs of all of its students, not just a majority of students or the students that were unaware of or unbothered by Mr.Kluge’s practice of using last names only.  (Emphasis in the original).

Now the case has been decided by the 7^th Circuit, the highest level court to address the tension that exists between a school policy like this one and the sincerely held religious beliefs of a teacher. We’ll tell you about that Circuit Court decision tomorrow.  The lower court decision is Kluge v. Brownsburg Community School Corporation, decided by the federal court for the Southern District of Indiana on July 12, 2021.  It’s cited at 548 F.Supp 3d 814 (S.D. Ind. 2021).

DAWG BONE: WE’RE GOING TO SEE MORE OF THIS.

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

Tomorrow: how the Circuit Court looked at it….

It’s rare to find a Toolbox case involving a five-year old in kindergarten, but that’s what we have today. The ALJ (Administrative Law Judge) who heard this case over eight days described the little guy as “a delightful and articulate young man who has a world of potential in front of him.” But then he added “He needs to learn how to control his ADHD and resulting behavior.”

He did not control it well on January 24, 2020 when he “assaulted staff members at his school in part by throwing objects, such as supplies, books, pieces of a broken thermometer, and the base of a phone, at them.”  The school district pulled Tool #6 from the Toolbox and proposed a Disciplinary Change of Placement.

That didn’t work.  The IEP Team concluded that the boy’s behavior was a manifestation of his disability. Tool #6 can only be used when the behavior is not a manifestation.  So the district put Tool #6 back in the Toolbox and pulled out Tool #5—a removal due to “special circumstances.”

That didn’t work either.  Tool #5 allows for the immediate removal of a student in cases involving drugs, a weapon, or the infliction of “serious bodily injury.” There were no drugs here, and no one was seriously injured. So it came down to “weapon.” Did the student possess a “weapon”?  The ALJ said no, and now the federal district court has confirmed that ruling. The court quoted the ALJ’s ruling with approval:

It is difficult to imagine any instance where a Kindergarten student could cause death to anyone by throwing any of the objects at anyone at any range or velocity.  Plastic phone receivers and thermometers, no matter how broken and jagged, are not readily capable of causing a substantial risk of death.

The ALJ also concluded that “serious bodily injury” was unlikely. 

The district made a second mistake by calling for the student to go to an IAES (Interim Alternative Educational Setting) for just four hours a week.  Both the ALJ and the court found “the instruction itself appropriate but the quantity of that instruction inappropriate.”  Four hours a week is rarely going to do the job. 

The district ultimately pulled Tool #3 from the Toolbox and proposed a Change of Placement Without Parental Agreement to the SEED Program, which the court described as “a classroom specifically designed and engineered for students with behavioral issues.”  The ALJ and the court were good with that, despite parental disagreement.

It’s G.D. v. Utica Community Schools, decided by the federal court for the Eastern District of Michigan on March 30, 2023.  It’s published in the Individuals with Disabilities Education Law Reporter at 123 LRP 11355. 

DAWG BONE: CHOOSE THE RIGHT TOOL!

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

Tomorrow: Pronoun litigation…

There are numerous factual disputes about exactly what happened at the Whataburger in October, 2019, after the football game between Katy High School and Tompkins.  None of those facts got sorted out in the 5^th Circuit’s disposition of the lawsuit filed by Bronson McClelland, former captain of the Katy Tigers gridiron team.  Instead, the court reminds us of several well established principles of law. 

QUALIFIED IMMUNITY.  The student was suspended from the football team and stripped of captain status after he sent a three-second video to a student from the other high school.  He alleged that this disciplinary action violated his First Amendment free speech rights.  After all, his brief Snapchat video was recorded away from school after school hours, and wasn’t even sent to another student at KHS.  Isn’t this just like the F-Bombing cheerleader in Pennsylvania who won her First Amendment case before the Supreme Court?

It would have been satisfying if the court had addressed that issue. But it didn’t.  Instead, the court held that the scope of Mr. McClelland’s free speech rights was not “clearly established” at the time of the incident.  Therefore, the principal was entitled to immunity. Thus we are reminded that school officials are entitled to immunity unless “the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”

LIABILITY OF THE DISTRICT.  The district relied on its Athletic Code of Conduct to justify the disciplinary action.  However, the school board never adopted, approved, or ratified the ACC.  General rule in constitutional claims against school districts: they are not liable simply because one of their employees violated someone’s constitutional rights. They face liability only if the injury is directly attributable to action taken by the board.  That didn’t happen here.  So the court dismissed KISD as a defendant.

DUE PROCESS AND THE DAEP. There was a second incident involving this student a year later. He was briefly suspended from school and assigned to the DAEP for possession of a small quantity of marijuana in his car, which was parked on campus. The student alleged that the school deprived him of the “due process” he was entitled to as per the Constitution. Again there were many factual disputes that the 5^th Circuit ignores.  Instead, it relied on solid precedent.  Students are not entitled to constitutional due process when assigned to DAEP. Chapter 37 does require a conference with the student prior to DAEP assignment, but the U.S. Constitution does not require “due process.”  That’s because “a student’s placement in an alternative education program violated no protected property right.”  Nevares v. San Marcos CISD, 111 F.3d 25 (5^th Cir. 1997).

DUE PROCESS AND THE FOOTBALL TEAM.  The student alleged that the ACC was so vague as to be unconstitutional.  After all, what does “display/model behaviors associated with positive leaders” mean?  Isn’t that pretty subjective?  Again, the court sidestepped that issue and instead, reminded us that getting booted from the football team does not require constitutional due process:

This court has held that “a student’s interest in participating in a single year of interscholastic athletics amounts to a mere expectation rather than a constitutionally protected claim of entitlement.”

It’s McClelland v. Katy ISD, decided by the 5^th Circuit on March 31, 2023. The case will be published in the official reports, but for now can be found at 2023 WL 2728225.

DAWG BONE: BY THE WAY, IT’S LAW DAY.  HUG YOUR FAVORITE LAWYER.  IT’S ALSO THE DAWG’S BIRTHDAY.

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

Tomorrow: Toolbox Tuesday!!

Now that the Supreme Court has determined that plaintiffs can go directly to court with a claim for damages under ADA/504, it’s likely that we will see more litigation along those lines. The Daily Dawg reported this development on April 3rd with the case of Perez v. Sturgis Public Schools. Today, we look at a case seeking damages along those lines--allegations of disability-based discrimination against a student.

The court tossed the case out, noting that no reasonable jury could conclude that the district acted with the kind of intent that is required to recover damages. Here’s the quote that sums it up:

All told, Thurston was a teacher at George Ranch for a single semester. And not a full week had passed between the report of the December 14th incident and her being on the way out the door. Even less time had passed between Jennings becoming aware of the incident and Thurston’s exit.

Context: Thurston was the teacher. Jennings was the assistant principal. The “December 14th incident” was:

On December 14th, while students waited to get on the bus, Thurston told [the student] “if you want to kick me, then walk over here and kick me” and when he did, Thurston then kicked [the student] in the shin.

The court concluded that the district had responded to the report of the kick in the shin in a timely manner and was not even close to “deliberate indifference.” Case dismissed.

It’s Lamar CISD v. J.T., decided by the federal court for the Southern District of Texas on March 24, 2023. We found it in the Individuals with Disabilities Education Law Reporter at 123 LRP 10743.

DAWG BONE: KICKING THE STUDENT IS NOT OK, EVEN WHEN THE KID KICKS FIRST.

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

ZOOMING WITH THE DAWG AT 10:00 THIS MORNING! FREE TO ALL LOYAL DAILY DAWG READERS!! TODAY I TALK WITH SHELLIE CROW ABOUT THE CREATIVE USE OF YOUR DOI PLAN.

Traditional school districts have the power to make themselves a little less traditional by adopting a DOI Plan (District of Innovation). Eighty percent of the districts in the state have adopted a DOI plan, but most of them do not innovate as much as they could. Today we are going to focus on ten areas in which you could change how things are done in a significant way. I’m delighted to be joined by Shellie Crow who has worked with many districts on DOIs and has some creative suggestions to offer.

Hope to “see” you at 10!

DAWG BONE: BE INNOVATIVE. BE CREATIVE. THAT’S WHY THE LEGISLATURE CREATED DOIs.

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

Tomorrow: a kick in the shin….

A 7th grade girl in Louisiana alleges that a male classmate made “inappropriate comments” to her and touched her on the thigh. The school suspended the boy and ordered him to stay away from the girl. After a subsequent complaint from the parents, the school changed the girl’s schedule so that she would not share a class with the boy. All that is alleged after that is that the two students sometimes passed in the hall and the boy “would smile at [the girl] and laugh as he passed.”

Was there more to it? If so, it didn’t make its way into the 5th Circuit’s decision. The court took all of one page to conclude that this type of treatment was not “severe and pervasive” and the school’s response was not “deliberately indifferent.” No Title IX claim here. The whole thing made me think of Maria Muldaur’s song, “Don’t You Feel My Leg.” Check it out, Loyal Daily Dawg Readers!

It’s anticipated that the new Biden-era Title IX regs will be finalized and put in place sometime next month. Even with those new regs, behavior as it is alleged here will not meet the “sex discrimination” standard in Title IX. That’s not to suggest a complaint along these lines should be ignored. It wasn’t ignored in this case, which is one reason why the school successfully got the suit dismissed. It’s Kirkpatrick v. School Board of Lafayette Parish, decided by the 5th Circuit in an unpublished decision on April 3, 2023.

DAWG BONE: LOOK FOR FINAL T9 REGS SOON. WE’LL BE ALL OVER IT.

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

Tomorrow: talking about DOIs….

As required by law, T.E.A. has issued the “Minimum Standards for Bullying Prevention” for all public schools, including open-enrollment charters. For our purposes today, this being Toolbox Tuesday, I want to particularly call your attention to Item 7, the last item on T.E.A.’s list, because that’s the one that specifically addresses students with disabilities. But let’s work our way to that final item with a quick summary of the other six points.

The Minimum Standards require:

1. Instructional content that is research-based, age-appropriate, and designed to reduce bullying.
2. A description of how you will measure success in your efforts. This must include “an age-appropriate survey that includes relevant questions on bullying, including cyberbullying” and “appropriate privacy controls in compliance with FERPA.”
3. A committee on each campus that focuses on prevention efforts and health and wellness initiatives. The membership must include parents and secondary students, and “may be incorporated into an existing committee.”
4. Policy regarding how bullying is reported, including cyberbullying.
5. Support for research-based interventions both for those students who engage in bullying, and those who are targeted.
6. A “rubric or checklist to assess an incident of bullying and to determine the LEA’s response to the incident.”
7. In connection with the policy in subsection 4 and the rubric/checklist in subsection 6 any actions taken in response to bullying, including cyberbullying, must comply with state and federal law regarding students with disabilities.

The federal law standards are all of those that we’ve incorporated into the Toolbox, such as the requirements for a change of placement (Tools #2, #3, #6), the emphasis on BIPs (Tool #1), and the “special circumstances” (Tool #5) that deal with drugs, weapons, and the infliction of serious bodily injury.

What about state law? There is one provision in state law that we sometimes forget about. In relevant part it tells us that

a student who is enrolled in a special education program under Subchapter A, Chapter 29, may not be disciplined for conduct prohibited in accordance with Subsection (a)(7) until an admission, review, and dismissal committee has been held to review the conduct. T.E.C. 37.001(b-1).

The “conduct prohibited in accordance with Subsection (a)(7)” is bullying, harassment, and the making of a hit list. So this section of Chapter 37 is telling us that there can be no discipline of a student with an IEP for bullying until the ARD Committee has considered the matter. This does not bar campus administrators from taking immediate action to address bullying by a student with a disability. But before the label of “bullying” is attached to the student, the ARD Committee should talk about it.

These “minimum standards” are sure to come up in court cases in the future. If a student sues a district alleging that pervasive bullying was ignored, you can bet that the student’s lawyer will want to examine your compliance with these standards.

DAWG BONE: THE “MINIMUM STANDARDS” WILL COME UP IN LITIGATION. BE SURE YOUR DISTRICT IS IN COMPLIANCE.

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

Tomorrow: a touch on the thigh….

WE’RE ZOOMING WITH THE DAWG ON THURSDAY AT 10! JOIN ME AND SHELLIE CROW AS WE DISCUSS NEW WAYS TO USE A DOI PLAN.

The board president stopped Billy Ison from completing his remarks during public comment at the school board meeting. The board president relied on the board policy that allowed him to interrupt, warn, or stop a speaker who was “abusive” “antagonistic” or making remarks that were “personally directed.” The 6th Circuit held that what the board president did violated the First Amendment. Key Quote:

The antagonistic restriction, by definition, prohibits speech opposing the Board…..And abusive prohibits “insulting” language,…..with “personally directed,” meaning simply abusive speech directed at one person per the Board’s interpretation. These terms plainly fit in the “broad” scope of impermissible viewpoint discrimination because like in Matal, Iancu, and American Freedom Defense Initiative, they prohibit speech purely because it disparages or offends.

Matal and Iancu are SCOTUS cases that the 6th Circuit relied on, while American Freedom Defense is an earlier 6th Circuit decision.

The court was OK with the school’s requirement that those who wanted to speak during public comment had to sign up for it at least two days in advance, and do so in person. That was viewed as a “time, place, and manner” restriction that did not discriminate on the basis of viewpoint. But the desire of the board to avoid disparaging and offensive remarks was viewed as discriminating on the basis of viewpoint. The board would allow Mr. Ison to praise the board, but not to disparage, offend or be “antagonistic.” Citing a remark by Justice Alito in the Matal case, the court noted that “giving offense is a viewpoint.”

It's Ison v. Madison Local School District Board of Education, decided by the 6th Circuit on July 7, 2021 and cited at 3 F.4th 887.

DAWG BONE: REVIEW YOUR “PUBLIC COMMENT” GUIDELINES WITH YOUR SCHOOL ATTORNEY.

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

Tomorrow: Toolbox Tuesday!!

The decision of the 5^th Circuit describes a cinematic moment involving the third grader, the police officer, and the principal.  It starts with a “meltdown” by the student: “He became agitated and began throwing objects, pushing over desks, and hitting his teachers, resulting in the evacuation of his classroom.” The teacher dialed 911 and the Waxahachie Police Department showed up.

When the cop entered the classroom, “[the student] began running towards him and threw a chair at him.”  The officer caught the chair, grabbed the boy by his arms, and placed him on his stomach while the principal held the student’s head to keep him from banging it on the floor.  The court gave the officer credit for his efforts to calm the student down, but they were not successful.  Backup was called for, and the backup warned the boy that he would be handcuffed if he failed to calm down. He didn’t.  Then this:

Once he was in handcuffs, the officers were able to walk [the student] to the front office where his mother came to pick him up.  [The student], his mother, [the principal], and the officers then debriefed what happened and the conversation ended with [the student] shaking hands with one of the officers and hugging [the principal]. 

Despite that peaceful moment, the parties ended up in litigation, the parent claiming that the district was too slow to develop a BIP, and was otherwise failing to meet its obligations under IDEA. It first went to a special education due process hearing officer who ruled in favor of the district. The federal district court affirmed that ruling and now the 5^th Circuit has as well. 

The court’s 25-page decision is replete with citations to the testimony of the teachers and other direct service personnel.  The court summed up its decision with this:

In sum, this case is very fact specific given that the issues raised by [the student] on appeal mostly require our review of credibility determinations made by the hearing officer.

The basic dispute in this case was over the timing of the development of a BIP. In the spring semester of the student’s third grade year his behavior escalated, culminating in the handcuffing incident described above.  After that incident the district promptly offered to do an FBA and a BIP. But the parents argued that this was too late, that the district had enough information about behavioral problems in the fall of that school year and should have offered a BIP then.  But the hearing officer relied on the testimony of the teachers that the IEP was already appropriately and adequately addressing behaviors in the fall.  Key Quote:

In reviewing the record, we find that the district court sensibly followed the hearing officer’s reliance on the testimony from [the student’s] teachers, who interacted with him on a daily basis, to conclude that [the student’s] behavior was being adequately managed without an FBA and a BIP until February of 2017. 

The most important witness in a special education hearing is the classroom teacher. Here is yet another example of that: B.S. v. Waxahachie ISD, decided by the 5^th Circuit in an unpublished decision issued on March 23, 2023. The opinion can be found at 2023 WL 2609320. I’m pleased to let you know that the district was represented by the lawyers in our firm, led by Nona Matthews and Meredith Walker.

DAWG BONE:  WHEN TEACHERS TESTIFY, JUDGES PAY ATTENTION.

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