It’s inevitable that this would happen—the same campus where the service dog is required has the child with the allergy to dogs.  What do we do?  A federal court recently cited OCR guidance that basically says…do your best to accommodate both people.  The OCR guidance reads like this: 

Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom….they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.

Citing this guidance, the court held that the school’s accommodation plan for the student with an allergy to dogs was reasonable and adequate.  The school was not required to guarantee a dog-free school.  However, while the plan was good on paper, there was a problem with implementation.  The court held that there was enough evidence of the school’s failure to enforce its 504 plan to permit the case to go forward.

The case of Doe v. United States Secretary of Transportation was decided by the Southern District of New York on December 4, 2018.  We found it at 73 IDELR 152 (S.D.N.Y. 2018).

DAWG BONE: THE DAWG CAN HARDLY BE NEUTRAL ON SUCH ISSUES.

Tomorrow: Does Title IX work for the boys?

At last month’s UT School Law Conference we heard a very informative presentation from Amanda Bigbee, General Counsel at Keller ISD, about what Keller has done with its District of Innovation plan.  This DOI thing has really taken off in Texas, with over half of the districts in the state adopting a plan. However, most of those plans address only a few things, such as the starting date for school (804 districts) and teacher certification (727).  Keller’s plan goes quite a bit further.

Two specific provisions caught my attention. First, Keller obtained an exemption from the requirement that students below the third grade cannot be suspended out of school.  The Keller DOI allows for suspensions of up to three days in a row, no more than 10 total for the year. 

Second, Keller’s plan permits the district to suspend a contractual employee without pay when the action is based on an alleged violation of the Educator’s Code of Conduct. 

Exemptions like these require buy in from teachers and parents.   If your district is interested in expanding its DOI plan with these provisions or others, it would be wise to plan carefully, get buy in from stakeholders, be transparent, and go slow. 

One other idea I got from Amanda’s excellent presentation—it would be a good idea to set aside some time after the legislative session to review all of the new laws and identify those from which the district would like to seek exemption.  I’m sure my Back to School program this fall will highlight that option. 

The attorneys in our firm can help you with amendments to your DOI plan. We can help clarify what areas are available for exemption, and can help you with the process. So give us a call if we can help.

DAWG BONE: GET INNOVATIVE!

Tomorrow: Johnny has a service dog. Susie is allergic to dogs.

I’m happy to report that Toolbox 4.0 will soon debut.  As most Daily Dawg readers know, the Toolbox is a full day training program focusing on the legalities of student discipline as applied to students with disabilities. It’s a complicated subject, which is why I created the Toolbox. The goal was to provide an understandable framework and vocabulary to help school officials protect the rights of students under IDEA while maintaining safety on campus.

The tools in 4.0 are the same as the ten tools in 3.0. Neither the law nor the federal regulations have changed, so the tools remain the same. But we’ve added some new text to our Q and A, along with some new hypotheticals and newer cases that illustrate how the tools work in litigation.

I have Toolbox workshops currently booked at Decatur ISD, Ingleside ISD, Regions 6, 7 and 10.  There is room on the calendar for more, so if you are interested give me a call.   

DAWG BONE: 4.0: NEW AND IMPROVED!

Tomorrow: How innovative is your DOI plan?

I expect you’ve heard by now that the Texas Court of Criminal Appeals has struck down an important part of the Texas Open Meetings Act (TOMA).  The court held that one section of the Act was unconstitutionally vague.  Thus for now, no one can be prosecuted for knowingly conspiring to circumvent the law by meeting in numbers less than a quorum in order to secretly talk about public business. 

This is a big deal, but let’s put it in perspective. First, this is just one section of the TOMA. The rest of the law remains intact. 

Second, the section shot down by the court is one of the few parts of TOMA that applies criminal penalties.  Criminal penalties can only be imposed when the law gives fair notice to people of what kind of conduct would amount to a violation of the law.  The law has to be reasonably clear.  That’s why those speed limit signs on our highways always have a specific number.  For three years, the State of Montana’s speed limit on major highways omitted a number and only required driving at a “reasonable and prudent” speed.  Then, in 1998, the Montana Supreme Court rejected this as unconstitutionally vague.  Your definition of “reasonable and prudent” may be way different than mine. I can attest to this every time I drive I-35.  In the TOMA case, we see the same principle at work. 

Third, it’s still improper for school board members, or any other government officials, to knowingly seek to circumvent TOMA.  Public business is supposed to be discussed at a properly posted meeting open to the public.  The fact that criminal prosecution is no longer available does not change that.

Fourth, keep an eye on the legislature.  There are already several bills introduced that would restore criminal penalties.  Anything the legislature does on this will be compared to the standards set out in the court’s opinion regarding clarity vs. vagueness. So keep an eye on HB 2965, HB 3402, HB 3697, HB 3752, SB 494 and SB 1640. 

Finally, we’ve always known that this part of the law was vague.  We just didn’t know that it would be deemed so vague as to be unconstitutional. School board members have been worried about simple email communication and text messages that might get passed along from Board Member 1 to Board Member 2 and then to Board Member 3.  Is this now a “conspiracy”?  Those anxieties will ease a bit with this ruling from our state’s highest criminal court.  Nevertheless, TOMA is intact and is designed to guarantee transparency in the transaction of official business. We would all be wise to keep that in mind.

The case is State of Texas v. Doyal, decided by the Texas Court of Criminal Appeals on February 27, 2019. 

DAWG BONE: SEEKING TO CIRCUMVENT TOMA IS NO LONGER A CRIME, BUT IT AIN’T RIGHT EITHER.

Tomorrow: Toolbox Tuesday!!

Is it OK to have a transfer policy that explicitly treats students with IEPs differently from others?  According to the 7^th Circuit it is. This high level court opinion is worth some serious study by districts that accept transfer students. 

Wisconsin’s state law creates a detailed procedure to implement its “Open Enrollment” policy.  The procedure explicitly divides students into two categories and treats them differently: those with IEPs and those without.  If you do not have an IEP your transfer request will be compared to the district’s available space in your grade level. If you have an IEP, the same factor will be considered, but also this:

Whether the special education or related services described in the child’s IEP…are available in the nonresident school district.

Consider how that would work in practice. Imagine that two 4^th graders seek to transfer into the Green Bay district.  One of them has an IEP dealing with his autism.  The district has room for two 4^th graders, but it lacks the ability to provide the services described in the student’s IEP.  The general education student is accepted; the special ed kid is turned down.

Discrimination? The 7^th Circuit said no:

Differential treatment of special-needs students doesn’t make the program unlawful.  Federal law “forbids discrimination based on stereotypes about a handicap, but it does not forbid decisions based on the actual attributes of the handicap.”  Anderson v. University of Wisconsin, 841 F.2d 737, 740 (7^th Cir. 1988).  The program makes decisions based on the actual needs of disabled students, so it complies with federal law.

The plaintiffs made a second argument in this case—that acceptance of students with IEPs was required as a “reasonable accommodation” under Section 504. The court rejected that as well:

Neither the ADA nor the Rehabilitation Act [504] requires modifications that “would fundamentally alter the nature of the service, program, or activity.”  The requirement that nonresident school districts have the excess capacity to meet the needs of transferring students is a fundamental component of this program.  Demanding that nonresident school districts accept students regardless of their existing capacity to meet student needs would upend this key feature. Federal law does not require such an overhaul.

The court’s analysis is a good illustration of how our laws about disability discrimination are different from other non-discrimination laws.  There is no way that a court would approve differential treatment of students based on race or religion.  That’s because neither of those characteristics affect how the student is served. But disability does affect services.  Serving a student with a disability requires a different level of services. It usually costs more. It requires professional services and/or equipment that would not otherwise be required. Thus it is not surprising to read that 71% of Wisconsin students without IEPs were accepted for transfer, whereas only 64% of students with disabilities were. 

This case is worth a good review with your TASB policy consultant and school lawyer.  The case is P.F. v. Stanford Taylor, decided by the 7^th Circuit on January 22, 2019. We found it at 119 LRP 1475. 

DAWG BONE: SOMETIMES DIFFERENTIAL TREATMENT IS NOT THE SAME AS ILLEGAL DISCRIMINATION.

Sunday is St. Patrick’s Day!!  In order to afford this event its proper due, the Dawg takes a full week off. You should too! Call it “spring break” maybe.  See you back here on Monday, March 25. 

The teacher claims that she received a stipend of $6000 for teaching three dual credit courses last year, but is only getting $4500 this year.  The district cut her stipend by $1500 without written notice, and after the deadline for her to resign without penalty. Is that OK?

It might be.  The Commissioner said it was OK in McDaniel v. Llano ISD.  That’s because the teacher’s total compensation was not cut.  The payment for the dual credit courses came on top of her regular salary.  Apparently the district made up the $1500 difference by raising the regular salary.

The rule is that the district cannot reduce compensation for a Chapter 21 employee after the “penalty free resignation” date. But the only number that counts is the total compensation. So if the portion coming from the state goes up (let’s hope!) the portion coming from the local district might go down.  If a stipend is eliminated or reduced, but the total compensation remains at least the same, the district has complied with the law.  So if the teacher made $48,000 last year, her only guarantee is that she will make at least $48,000 this year.  How the district gets to that figure is within its discretion.

The case was decided by the Commissioner on December 21, 2018.  It’s Docket No. 054-R10-05-2018. 

DAWG BONE: IT ALL ADDS UP.

Tomorrow: Do you take transfer students?  How ‘bout those with disabilities?

USA Today reports that coaches in Kenosha, Wisconsin “honored” cheerleaders at their annual banquet by recognizing the girl with the largest breasts, the girl with the largest backside, and the skinniest girl.  When confronted about this the coaches gave the usual excuses for such inexcusable behavior.  “We’ve done this for a long time and no one has complained.”  “We were just joking.”

This stuff is not funny, and the fact that it’s been tolerated for a long time is no reason to continue to tolerate it.

Here’s the story:

https://www.usatoday.com/story/sports/highschool/2019/02/20/high-school-cheerleaders-big-booty-body-shaming-awards-aclu-involved/2931741002/

DAWG BONE: SHEESH. GLAD THIS DIDN’T HAPPEN IN TEXAS.

Tomorrow: Can the school cut my pay?

I usually start my Toolbox presentations explaining the natural tension that is built into our federal special education law.  The law requires schools to maintain safety.  It requires schools to serve students who may be dangerous.  Sometimes those two requirements are at odds with each other. 

A recent federal court case involving a charter school in New York spells out the tension nicely.  It’s a lengthy court decision including four appendices and 63 footnotes. The court noted that it reviewed over 1,000 student discipline cases.   The court held that the plaintiffs properly alleged claims that the charter school failed to provide due process, abused the “special circumstances” provision of IDEA and failed to provide adequate services in the IAES (Interim Alternative Educational Setting). Thus those claims will proceed.  The student was repeating first grade for the third time, largely due to repeated suspensions from school. 

Footnote 57 is where I found the court’s explanation of the natural tension built into the law:

….the Court recognizes the tension between the protection of [the student's] rights under the IDEA and [the school’s] interests in protecting their students from harm and themselves from related liability.

The disconnect here is between the “serious bodily injury” exception of the IDEA and the “continuing danger” exception of the 14^th Amendment.  Under the IDEA, serious bodily injury is defined very narrowly…

By contrast…..the “continuing danger” exception…is clearly a more flexible standard than that for “serious bodily injury.”

Therefore, in some circumstances, schools could be required to allow a disabled student who did not inflict “serious bodily injury,” but is a “continuing danger” to return to school, or else risk being held liable under the IDEA for improperly keeping the student out of school.  This potentially puts the school in the difficult position of weighing the safety of the student body against the monetary liability for violating the rights of a disabled student.  However, the Supreme Court has held that this tension is an intentional feature of the IDEA.

Yep.  That’s why our firm offers a full day training program that we call The Toolbox. It’s designed to empower educators to balance those two requirements properly.  We offer ten “tools,” a book to keep, some nifty laminated cards and some interesting hypotheticals to play around with.  If interested, let me hear from you.

The case is Patrick v. Success Academy Charter Schools, Inc. decided by the Eastern District of New York on December 14, 2018. We found it at 73 IDELR 146. 

DAWG BONE: THE BUILT IN TENSION WAS NO MISTAKE.  CONGRESS DID IT ON PURPOSE.

Tomorrow: Coaches acting badly. Not in Texas!!

Mr. Rodriguez thought that the district chose not to renew his probationary contract because of his disability.  The first year teacher had a stroke on January 22, 2016.  He did not return to work that semester and on May 17^th was told that his services would no longer be needed after the expiration of his one year contract.  As usual with the termination of probationary contracts, the district offered no explanation.

Mr. Rodriguez thought he knew why this happened: obviously, it was his disability.  Isn’t the district supposed to offer some sort of reasonable accommodation?  After all, nothing else happened between the date of the stroke and the notice of termination. 

Unfortunately for Mr. Rodriguez, soon to be known as “the Plaintiff,” something else did happen, but it happened before the stroke.  Some students had complained about Mr. Rodriguez on January 6^th.  One girl alleged that he paid her “unwanted attention” and hugged her in a way that made her uncomfortable.  Other students confirmed seeing some inappropriate interactions.

The principal wrote all this up in a memo to the superintendent dated January 12^th. In the memo, the principal recommended immediate termination of the teacher’s contract.  The memo further stated that the teacher had been put on suspension with pay.

Notice that all of this happened prior to the stroke.  So while Mr. Rodriguez may have been correct in saying that nothing significant happened after his stroke, he failed to mention some very important things that happened before the stroke. 

Here’s hoping that Mr. Rodriguez has made a full recovery. But his suit against the district was not successful. Because the district produced solid documentary evidence of a legitimate reason to terminate a probationary contract, and Mr. R did not effectively rebut it, the court held that the district was entitled to a judgment in its favor.

It’s Santa Rosa ISD v. Rodriguez, decided by the Court of Appeals for Corpus Christi-Edinburg on December 6, 2018. 

DAWG BONE: DOCUMENTATION IS IMPORTANT.  I BET YOU’VE HEARD THE LAWYERS MENTION THAT A TIME OR TWO.

Tomorrow: Toolbox Tuesday!!

“Subject to assignment and reassignment.”  It says that in your contract, right?  It said that in Reynaldo Ramirez’s contract when he served as Athletic Director at Rio Grande City CISD.  However, his contract did not employ him as A.D.  That was his assignment.  The contract called him a “Certified Professional Administrator.”  Then, prior to the 2017-18 school year, the district reassigned Mr. Ramirez to Attendance and Adjudication Administrator. 

Is that kosher?  The Rio Grande City CISD board said that it was, and now Commissioner Morath has upheld that decision.  The legal issue here was “same professional capacity.”  Superintendents can move pieces around on the chess board so long as they keep employees in the “same professional capacity.” 

The Commissioner cited earlier decisions in which the key factors were identified: authority, duties and salary.  With that in mind, the Commissioner provided this analysis:

Both the Athletic Director and the Attendance and Adjudication Administrator positions are administrative positions with district-wide authority.  Both positions require educator certification.  Both positions involve working with campus personnel, parents, and students.  Both positions involve interpreting, analyzing and applying relevant law and policy.  Both positions involve directing and training staff.  Both positions have similar levels of authority and appear on the third level of the organizational chart.  Petitioner’s salary was the same in both positions.

Thus based on “authority, duties and salary” these two positions were close enough that they were within the “same professional capacity.”  Mr. Ramirez lost his appeal.

But there are a few factors the Commissioner did not discuss:  prestige, status, pizazz, visibility. In a word: fun!  Mr. Ramirez’s lawyer argued this point, asking the Commissioner to “take official notice of the importance of athletic programs in Texas school districts.”  The response to that bordered on snarky:

The Commissioner also notes the importance of attendance to Texas school districts.

Is that a suggestion that attending school is just as important as football? 

I don’t think anyone ever grew up wanting to be “Attendance and Adjudication Administrator.”  How much fun would that be?  It just does not have the pizazz, status, prestige, or visibility of the A.D. job.  No sex appeal.  But none of that matters in the “same professional capacity” analysis.

The case of Ramirez v. Rio Grande City CISD was decided by the Commissioner on November 1, 2018.  It’s Docket No. 041-R3-03-2018.

DAWG BONE: SAME PROFESSIONAL CAPACITY IS ALL ABOUT AUTHORITY, DUTIES AND SALARY. 

We’ll be back next week!