We can learn several important things about TOMA (Texas Open Meetings Act) from the recent decision of the Court of Appeals in Terrell v. Pampa ISD.

First: “substantial compliance with TOMA’s notice requirements is sufficient.”   You don’t have to do things perfectly.  The court stated that “Our primary purpose should be on whether the purposes of the statute were met by the governmental agency.”

On that basis the court concluded that Pampa complied with the law by identifying the location of the meeting as being at “Pampa High School.”  The plaintiff argued that this was not specific enough, but the court said that it was.  The court offered the friendly suggestion that “it would be helpful if the notices in this case had identified the specific room” where the meeting would be held, but TOMA only requires “substantial compliance” and this was substantially compliant. 

Next, the plaintiff alleged that there was inadequate proof of posting in timely fashion—the full 72 hours required by law.  Nope.  The superintendent’s secretary “testified that she always posts notices of school board meetings at least 72 hours before the meeting and has done so throughout her career.”  Furthermore, “the notice itself indicates that it was posted by 5:00 p.m. on March 23, 2009.” That was 72 hours before the meeting.  So between the language of the notice and the testimony of the secretary, there was adequate evidence to prove this point.

The plaintiff argued that the district did not post the notice “on a bulletin board at a place convenient to the public in the central administrative office building.”   The plaintiff was right about that.  The district did not post the notice on its bulletin board. Instead, it put it on the inside of a glass door to the building. That way, people could read it at any time during the 72 hours, even when the building was locked.  The court was OK with how the district did it.  Again, the court ruled in favor of the district on this point, while offering another helpful hint:

While it seems the more compliant approach would have been to simply post one copy of the notice to the front door and another to the bulletin board…we conclude that PISD’s postings of meeting notices to the front door of the central administrative office substantially complied with the requirements of TOMA.

That makes sense.  Consider: if the district only posted it on its bulletin board the plaintiff would have had a stronger argument.  The building would have been locked for most of the ensuing 72 hours. What good does that do?  So the district did what most districts do: put in on a glass door facing out.

The big issue in this case was the fact that the notice of the meeting had not been posted on the district’s website.  In fact, it turned out that there were 22 meetings over a period of several months that were not posted on the PISD website.  The plaintiff argued that everything that was done in all 22 meetings was void. Yikes! 

The court made note of the provision in the law that excuses compliance with this requirement if “the failure was due to a technical problem beyond the control of the school district.”  The court held that this is what happened here. The district had retained a new third-party vendor to create and maintain a new website.  That vendor “failed to recreate a hyperlink on the website” for the notices to be published. This went on for many months and 22 meetings, unbeknownst to anyone in the district. Guess who discovered the problem and pointed it out?  THE PLAINTIFF!  And the district then promptly corrected the problem. 

The court held that the district made the required “good faith” effort to get the notices on the website, and was thwarted by a “technical problem” beyond its control.

As usual in a TOMA case, there was a non-TOMA issue behind the scenes. The plaintiff’s probationary contract was terminated at the board meeting that the plaintiff complained about.  This case does not address the employment issue, but completely affirms the district’s compliance with TOMA. The case was decided by the Court of Appeals in Amarillo on January 9, 2019.  We found it at 2019 WL 150884.

DAWG BONE: TOMA IS THE MOST IMPORTANT LAW FOR SCHOOL BOARD MEMBERS. IT DOESN’T TELL YOU WHAT TO DECIDE, BUT IT GOVERNS HOW YOU DECIDE EVERYTHING.

Tomorrow: the judge thinks the law makes no sense.  Can you relate?

As the song tells us, “Girls Just Want to Have Fun.”  So it’s understandable that S.J., (soon to be known as “the Plaintiff”) and her four friends were having a great time in the car on their way to dinner to celebrate their selection to the cheerleading squad.   Wearing the new cheer shirts they had just been given, the girls accompanied Big Sean as he sang “I.D.F.W.U.”

Singing with Big Sean was fun! Recording it on someone’s cell was even more fun!! And posting an eight-second video on SnapChat was the best!!!

The Dawg is blissfully unaware of who Big Sean is and has never heard this piece of music.  But the court quotes some of the lyrics that were recorded in the video and posted on social media:

I don’t f*** with you, you stupid little a** b****, I ain’t f****** with you.

Oh my.  It occurs to me that if they would have chosen “Doe a Deer” from the Sound of Music instead, we would not be talking about it.  But I digress. Let’s get back to the legal issues. 

S.J. deleted this post thirty minutes after posting it, but it was too late.  Other students had seen it and one of them, a former cheerleader with a sense of propriety, reported it to school administrators the next day. 

The school officials kicked all five girls off the squad, but swiftly reversed course with the other four.  Those four had sung and appeared in S.J.’s video, but they did not post it. Moreover, they promptly expressed remorse and accepted the conditions for reinstatement that the school offered: an apology, 50 hours of community service, and a statement on appropriate social media usage. 

S.J., backed up by her parents, stonewalled. She maintained she had done nothing wrong. The lyrics were vulgar, but they were sung in a private vehicle away from school. It’s all Free Speech.  The posting on SnapChat happened accidentally. Nothing was her fault. 

The school administrators did not buy any of that, so they removed S.J. from the cheerleading squad.

The lawsuit sought an injunction to restore S.J. to the squad and prohibit any future discipline over this incident.  In an opinion that went on way longer than necessary, the court denied the injunction.  The court held that the Plaintiff was unlikely to succeed on the merits of her case, and had not suffered “irreparable” harm.  The cheerleader constitution was not so vague as to be unconstitutional. So the school won this round.

I’m supposed to tell you about cases like this from the legal point of view. But when I read a case like this I find myself being more parental than lawyerly.  What the hell are this girl’s parents thinking?  These new cheerleaders were told not to blab about making the squad until the official announcement was made the next day.  They were also told that cheerleaders were held to a high standard, and that all use of social media was expected to be appropriate.  Especially while wearing Mountain Crest Cheerleader shirts.

It was right after they were informed of this—RIGHT AFTER--that they went all karaoke in the car with Big Sean. Sheesh.  On top of that, S.J. was also offered an opportunity to get back on the squad if she would comply with conditions similar to those the other four girls agreed to.  Nope. 

We clog up our courts and run up unnecessary costs with silly cases like this, claiming “irreparable harm” for a consequence that was both minor and self-inflicted. We expect teachers and administrators to encourage kids to develop good values. We expect them instill and nurture those values. But some parents choose to fight when schools attempt to hold their children to those values.

I say again: Sheesh.

The case is Johnson v. Cache County School District, decided by the federal court for Utah on July 3, 2018. We found it at 323 F.Supp.3d 1301, at 358 Education Law Reporter 278. 

DAWG BONE: SHEESHEROOSKI.

Tomorrow: a TOMA case from Pampa, Texas.

The Toolbox is a full day training program designed to help educators serve students with disabilities who present challenging behaviors.  Throughout the Toolbox we emphasize compliance with the law and respect for the role of the parents.  For example, it’s important that the school obtains parent consent when it wants to conduct an evaluation. That includes an FBA—Functional Behavioral Assessment.  So in answer to the question posed above—when is it OK to do an assessment without parent consent, the Dawg’s answer is “never.”

But. 

There are always exceptions.  The Mountain Home School District in Arkansas got away with doing an FBA without consent.  The court slapped the district on the wrist, but it was a pretty light slap.  The parent complained that the district did not get her consent to do the FBA, nor did it pursue legal action to override her lack of consent.  The court held that even if this was a procedural violation of IDEA it made no substantive difference.  The court applied the “no harm, no foul” principle. 

This ruling seems curious until you read the footnote:

It is a rare and perhaps altogether unique occasion for the undersigned [BTW: only judges refer to themselves as “the undersigned”] to preside over a lawsuit in which a plaintiff complains of a defendant’s decision not to sue the plaintiff. 

The Court is left with the distinct impression that literally the only way the District could have avoided this lawsuit would have been to turn the IEP team effectively into a team of one—consisting solely of Ms. Albright—and to consent in every single respect, whether material or immaterial, to Ms. Albright’s IEP wishes. But that is not what the IDEA requires.  Rather, an IEP team must include not only the parents of the child with a disability, but also educators and school officials, along with other individuals, and “collaboration between IEP team members” is an explicit goal of the IDEA. 

Thus we see, once again, the unwritten rule in special education litigation. The court will study the facts and apply the law, but will do so while quietly assessing the reasonableness of the parties.  The court found Ms. Albright unreasonable. 

The case is Albright v. Mountain Home School District, decided by the federal court for the Western District of Arkansas on November 5, 2018. We found it at 73 IDELR 93.

DAWG BONE: STILL…GET CONSENT BEFORE AN FBA.

Tomorrow: do you know what I.D.F.W.U. means? 

Mr. Van Deelen in Spring ISD thinks that he got fired for reporting two things that he thought were violations of law.  First, there was the teacher who he believes was dealing drugs to the kids in the parking lot.   Second, there was the principal who was told of this and then failed to pass it on to law enforcement.  Mr. Van D reported these alleged transgressions to everyone short of the governor’s office and later claimed he was fired for doing so.  Whistleblower suit. 

 Spring ISD convinced the district court to dismiss the suit entirely, but the court of appeals has partially reversed that decision.  We can learn a few things about Whistleblower cases from the court’s opinion.  

First, just because the principal fails to do something that the law says she “shall” do does not mean that the principal has violated the law.  Mr. Van D reported to law enforcement that his principal had not complied with Section 37.015 of the Education Code.  That section says that a principal “shall notify” the police if she has “reasonable grounds” to believe that certain types of misconduct have occurred on school property.  The court held that this statute is a “notification statute that does not create criminal liability for a failure to report.  Therefore, “A failure to report under 37.015 is not a violation of law.” No violation of law, means no Whistleblower claim. 

Second, the plaintiff in a Whistleblower case does not have to be right about the alleged violation of law—he just has to have a good faith belief that he is right.  This case involves huge factual disputes that will have to be sorted out, which is why the appellate court held that it was premature to toss it out completely.

The plaintiff provided an eyewitness account of what he believed to be drug dealing between students and a teacher in the school parking lot. Yikes.  The principal investigated these allegations and found them to be without merit.  In fact, the district promptly suspended Mr. Van D and terminated his employment at the end of the year after the principal accused him of “a pattern of false and unwarranted accusations against African-American students and teachers…involving drug use.”  Perhaps that is so, but the plaintiff Whistleblower does not have to be right about what he reports.  He just has to have a good faith belief that he is right.

There are fact issues to be resolved, which is why the appellate court held that the case should not be prematurely terminated.  Certainly what Mr. Van D thinks that he witnessed would amount to a violation of law.  Here is where the factual dispute comes up. The court summed it up nicely:

The District argues that Van Deelen “jumped to conclusions” that [the other teacher] was dealing drugs.  We disagree.

The court then recounted the detailed allegations from the Plaintiff’s perspective and concluded that:

A reasonably prudent teacher with similar training and experience and in similar circumstances could have believed that [the other teacher] was involved with, and possibly dealing, illegal drugs.

So the case will continue.  It’s Van Deelen v. Spring ISD, decided by the Court of Appeals in Houston on December 20, 2018. We found it at 2018 WL 6684278.

DAWG BONE: YOU HAVEN’T BLOWN THE WHISTLE PROPERLY UNLESS YOU ACTED IN GOOD FAITH.

Tomorrow:   Toolbox Tuesday!!

The court summed it up thusly:

The parents’ vendetta against school staff, particularly [the math teacher] and [the housemaster], has continued for five years and cost the district hundreds of thousands of dollars in attorneys’ fees, and consumed significant time and attention from school officials.  Based on the evidence in the record, it appears that Lincoln-Sudbury staff were patient and accommodating, and complied with Dr. Gaughan’s orders in their entirety.  By contrast, the parents made unreasonable and unjustified demands, used inflammatory language, and otherwise harassed school officials (and the hearing officers) caused unnecessary delays, and increased the cost of the proceeding. 

This was about a very high achieving student who got a concussion from playing field hockey and missed a couple of weeks of school.  The district accommodated her injury to help her catch up with missed school work.  Eight months after the injury her “intensive math” class teacher recommended that next year she should take a less rigorous, but still advanced, math class.  The parents, claiming that the school failed to accommodate the girl, pulled her out of public school, placed her in an elite private school that offered no special education services and sought reimbursement of tuition due to an alleged “Child Find” violation.  The girl sailed through the last two years of high school at the private school and was Acing her way through George Washington University at the time of the court’s decision.  Does that sound like a “Child Find” violation to you?  I didn’t think so.

The court awarded $188,996 in attorneys’ fees to the school district.  The court held that the  parents’ request for a due process hearing was frivolous and brought for an improper purpose.  Thus the school was entitled to recover fees for the costs of defending the case.  The district did not recover as much as it sought, but still…..$188,996 is not peanuts.

Our special education laws represent a noble effort to fulfill our moral obligation to students with disabilities and their parents.  Unfortunately, those laws can be abused.  It’s good that the law allows for schools to recover their damages in these rare cases. But what a waste. 

The court’s opinion in Lincoln-Sudbury Regional School District v. Mr. and Mrs. W. was issued on January 25, 2018 and can be found at 2018 WL 563147. The award of attorneys’ fees is summed up at 2018 WL 6584118. Both decisions come from the U.S. District Court in Massachusetts.

DAWG BONE: “PATIENT AND ACCOMMODATING” WINS THE DAY….AT LAST.

Dear Dawg: Please note that the undersigned law firm has been retained by Mr. Charlie Brown to pursue claims against the Mudworthy ISD and all of its top administrators. A few of the not so top as well. 

Mr. Brown attended Mudworthy ISD a few decades ago along with the Van Pelt children (Lucy and Linus), a piano playing prodigy named Schroeder, an assortment of other kids and one beagle dog named Snoopy.  Pertinent to the above mentioned claims, my client was repeatedly, deliberately, flagrantly, completely, heartlessly ignored, snubbed, rejected and put down by one child known only as The Little Red Haired Girl (TLRHG).  Such inhumane treatment, well known to the administrators and teachers of Mudworthy ISD, culminated each year on Valentine’s Day when my client was ostentatiously denied a Valentine’s Day Card by the aforementioned TLRHG despite the fact that every other child in the classroom, boy and girl, smart and not so, tall and short, thin and fat, received a card.  Certified but heartless teachers observed this cruel treatment year after year to my client’s detriment.

My client suffers the effects of this trauma to this day.  Depression.  Codependency.  Post Traumatic Stress Disorder.  He wears the same boring shirt every day of his life and has been unable to maintain a relationship or hold a job. Even his loyal canine companion, Snoopy, has abandoned him.

The real malefactor here is TLRHG but we don’t know her name or where she lives. So we’re coming after you.  There are many zeros in our demand for damages.  Give me a call.  BUCK TOPPER, ATTORNEY AT LAW.

DEAR BUCK: Hey, buddy, everybody has a sad V-Day story to tell.  The Little Red Haired Girls of the world have been crushing the hopes of the Charlie Browns since the beginning of time.  We have some therapeutic advice to offer your client.  GET OVER IT.  Maybe he should do something creative with his pain.  Some guys write songs.  The Girl from Ipanema.  What a Fool Believes.   As for you, we suggest you do a little research into the statute of limitations.

DAWG BONE: HAPPY VALENTINE’S DAY!!

Tomorrow: IDEA abuse.

A Texas federal court has turned down the Wylie ISD’s request to dismiss a lawsuit alleging a violation of Title IX through student-to-student sexual harassment. The decision carries two important lessons for school districts about potential liability in this area.

First, Settlement Agreements come in at least two sizes. There are complete settlements and there are partial settlements. This one was a partial settlement. The dispute began when the parents filed for a special education due process hearing, alleging a denial of FAPE. They settled that part of the case with the district, signing an agreement to drop their request for hearing and releasing the district from liability. But not all liability. The Agreement only released claims related to IDEA and the provision of a Free Appropriate Public Education. The Settlement Agreement specified that “this Release does not include claims that are unrelated to the provision of a free appropriate public education (“FAPE”) pursuant to IDEA.” Thus the subsequent litigation over Title IX came as no surprise.

Second, it’s really important for teachers to report sexual harassment and document that they have done so. This is a rare case. In cases like this the plaintiff usually alleges that school administrators were told of the harassment and failed to take action. But here, there are no allegations that the superintendent, the principal or even an assistant principal were informed. Instead, the allegations are about what teachers knew, and what they failed to do about it. Based on this, the court held that there were sufficient allegations in the suit that the district “knew” that the plaintiff was being harassed.

Here’s how the court explained its reasoning that the WISD “knew” that the plaintiff was being harassed:

Plaintiffs’ primary factual allegations that Defendant was aware of the harassment stem from the fact that teachers were present in the room or hallway where harassment and bullying routinely occurred but did nothing to intervene.

Moreover, none of the bullying or assault happening in front of teachers was reported to the school district or administration.

Consider: if it had been reported to the administration, then there would be clear evidence that the school “knew.” But the court holds the school responsible even though there was no evidence that the acts of bullying and assault were reported to the principal. In fact, the failure to report is used as evidence that the school district “knew” what was going on.

This is only a preliminary ruling. The plaintiffs have a heavy burden of proof in this case and the district retains many theories of defense. There are also many facts yet to be developed. At this stage (Motion to Dismiss) the court is required to accept the facts as alleged by the plaintiff and to give the plaintiff every benefit of the doubt. But the fact that the Motion to Dismiss was denied based exclusively on what teachers allegedly did (and did not do) should be a sharp warning to school administrators. Don’t let your teachers ignore instances of bullying or gender-based harassment. Make sure that this stuff is reported, and that you document how you responded.

The case is Prendergast v. Wylie ISD, decided by the federal court for the Eastern District of Texas on December 20, 2018. We found the judge’s ruling at 2018 WL 6705536. That ruling affirms the Report and Recommendation of the Magistrate Judge which is at 2018 WL 6710034.

DAWG BONE: TRAINING OF TEACHERS IS MORE IMPORTANT THAN EVER.

Tomorrow: The lasting effects of The Little Red Haired Girl’s Rejection of Charlie Brown.

The Department of Education has announced an initiative focusing on the possible inappropriate use of restraint and seclusion in our schools.  DOE tells us that this initiative will involve Compliance Reviews, Data Collection and Support.  You can expect to hear more from T.E.A. about this.

In the Toolbox Training we offer ten tools that are designed to help you comply with our special education laws while serving dangerous or violent students appropriately.  Physical restraint is not one of the ten tools, but we talk about it and how it should and should not be handled. 

We have a lengthy administrative regulation about restraint, and it’s essential that school officials comply with it. See 19 T.A.C. 89.1053.  The regs limit physical restraint to emergency situations, which are defined as behaviors that pose a threat of “imminent, serious physical harm to the student or others” or “imminent, serious property destruction.”

Remember to document restraint properly and promptly.  Here are your bullet points about documentation:

• The campus administrator or designee must be notified of the use of restraint on the day it is used.  This does not have to be in writing, but obviously, written documentation is preferred.
• You must make at least a “good faith effort” to notify the parent of the use of restraint on the same day.  Verbal notice is acceptable.
• But written notice must be provided to the parent “in the mail or otherwise” within one school day. So if you restrain a student today, you must provide this notice tomorrow. 
• Documentation of the restraint must be placed in the student’s special education folder “in a timely manner” so that it is available to the ARD Committee when it meets to consider a BIP or the impact of the student’s behavior on learning.  Remember that at every annual ARD for every student the Committee is required to ask itself if the student engages in behaviors that “impede the learning” of the student or others. If you’re having to use physical restraint, it seems likely that the answer to that question is “yes.” 
• The regs include details about what has to be included in the documentation that goes to the parent and the folder. I expect you have a form for this.

The main point we make about restraint in the Toolbox Training is that it’s not practical to try to prescribe exactly when and how restraint will be used on an individual student. We don’t recommend including it in a BIP. It’s not a “positive behavior support.” It’s an emergency measure designed to prevent greater harm.  But parents should be well aware that restraint is authorized by Texas law and will be used if necessary.

The feds are going to be looking over your shoulder on this issue, but they shouldn’t have to.  Educators understand that the use of restraint should be rare.  If we find it necessary to physically restrain a student multiple times, that’s a sign that the student is not progressing as we would like.  Keep track.  Call for a meeting if restraint seems to be overly relied upon.

DAWG BONE: MAY YOU HAVE A RESTRAINT-FREE SCHOOL YEAR.

Tomorrow: Title IX student-on-student harassment

Sometimes legal advice is influenced by non-legal factors. This is particularly true with regard to school law, where public support for the school district is so important.   Here’s a good example. It must have been sometime in the late 1990s that I got a call from a superintendent and principal regarding the high school graduation which was scheduled for the following week. 

The ceremony was going to be on the football field, where a temporary stage had been constructed. The plan was for the graduates to walk up a few steps to the stage, shake hands with the board president and principal, receive the diploma, and then walk back down to the field. But there was a problem. One student was in a wheelchair. What to do?  Here’s how I sorta remember the conversation:

Law Dawg: Maybe you could get a ramp.

Principal: Not sure about that.  We were thinking maybe the student in the wheelchair could just remain seated and we would call attention to him as we announce his name.

Law Dawg: Well, that’s not what the other kids do.  It would be good if you could get a ramp so he could go across the stage like everyone else. 

Superintendent: I don’t know about that ramp. We were thinking maybe we could have a couple of students lift his wheelchair onto the stage….

Law Dawg: Well, some folks might find that embarrassing. Do you think you could build a ramp?  Do you have a shop class?

Principal: Well, we’re not sure that would work.  Not sure we have enough time or space for a ramp. 

Superintendent: But we’re concerned about it because we think we’re going to get some media coverage due to our graduation speaker.

Dawg: Who’s your speaker?

Principal: Governor Bush.

Dawg: FOR GOD’S SAKE BUILD A RAMP!!!

That’s how I know it was the late 90’s. 

DAWG BONE: I THINK THEY FOUND A RAMP.

Tomorrow: Toolbox Tuesday!!  Here comes DOE!

If you found that question provocative, I have bad news for you. We don’t know.  We will never know. The court tossed the case out before making any rulings on disputed facts.  But what happened in 4^th Period English class in the Westside Community School District in Nebraska provides talking points and lessons for all. 

According to the facts alleged in the lawsuit the teacher showed a video to the class about athletes kneeling during the National Anthem. The teacher provided some context, referencing the Black Lives Matter movement and reports of how some white people had responded to it with threats of violence.   The teacher assigned students to watch the video and comment on their views.

A.C., soon to be known as “the plaintiff,” wanted no part of this. When called upon she declined to express her views until the teacher pressed her about it.  So A.C., a 13-year old, expressed herself. She thought the kneeling athletes were being disrespectful to law enforcement and the military.  She made note of music lyrics that encourage disrespect to the police. She recalled a conversation she overheard a year earlier in which students were wondering why it was OK for the black kids to use the N-word, when the white kids could not.

The suit claims that the teacher shut her down right about there.  But now, A.C. wanted to finish her thought, explaining that in her view, nobody should be using the N-word. She was not given the opportunity to say that.

That might have been the end of it, but it wasn’t. A.C. woke up feeling ill the next morning and did not come to school. Her parents called the school to report this. 

The teacher sent an email to the parents that morning informing them of the previous day’s incident. According to the teacher, A.C. had to be “cut off” because the information she was sharing “took a dicey turn” when A.C. began “generalizing blacks.”  The teacher invited a conference with the parents.

Then the texts from the other students started rolling in, reporting that the teacher was slamming the girl in all of her classes. The suit put it like this:

“[The teacher] took that opportunity to smear and slander A.C.’s excellent reputation and character to the students in every class period,” as she “lied to intentionally defame and label A.C. as a ‘racist who says the N-word’ thus inflicting emotional and physical distress, decimating A.C.’s reputation and placing A.C. in direct harm and danger at school….”

That got A.C. out of her sick bed and into the parent-teacher conference later that day.  The parents alleged that they confronted the teacher, saying “It is entirely unfair that you label A.C. a racist!” They further allege that the teacher “rolled her eyes and smugly answered, “I do not believe it to be unfair….”

The parents encountered some procedural obstacles to filing suit.  First, parents do not have the legal standing to file suit solely on behalf of their children, and cannot proceed to do so acting as their own attorneys. So the court initially dismissed the suit, and instructed the parents to find a lawyer who could represent them. Then they could start over. 

They tried to find a lawyer. They tried hard.  The parents alleged that they contacted 35 lawyers in private practice, none of whom would take the case on a contingent fee basis.  They also got turned down by Nebraska Legal Aid and the Creighton University legal clinic.  They did not have the means to pay for a lawyer, so they asked the court to appoint a lawyer to help them. 

The court refused to do so. The court noted that the parents would be entitled to an appointed lawyer only if their constitutional claims were “sufficiently meritorious to warrant the appointment of counsel.” The court held that they were not.  So the court shut the case down without ever diving into the messy “she said/she said” about what happened in that classroom. 

The court cited numerous cases from SCOTUS and other high ranking courts that establish that student expression in the classroom is far from free.  Judges don’t want to exercise supervision over the daily interaction between teachers and students.  The court cited some earlier cases along these lines:

So long as the teacher limits speech or grades speech in the classroom in the name of learning and not as a pretext for punishing the student for her race, gender, economic class, religion or political persuasion, the federal courts should not interfere.

So the litigation is over, but let’s think about the impact of a story like this on the school campus.  Judges can dismiss cases like this, but principals cannot. Notice that the parents in this case allege two acts of wrongdoing by the teacher, one of them far more serious than the other. They allege that the teacher cut the student off before she could finish her thought.  Well….who wants to volunteer to second guess that kind of decision?  The teacher has to maintain control of the classroom discussion and must have a good deal of leeway in how to do that.

But the parents also allege that the teacher “smeared and slandered” a student in front of a room full of kids.  Apply the “if true, how serious is it” test to that.  I’d say: very serious.  The principal would have to dive into the weeds in an effort to establish exactly what happened in the classroom.   If it’s true, the principal needs to take some strong corrective action.

But we don’t know.  We never will. That’s the case of Crozier v. Westside Community School District, decided by the federal court for Nebraska on January 17, 2019. We found it at 2019 WL 249399. 

DAWG BONE: THE JUDGE DOESN’T NEED TO KNOW, BUT THE PRINCIPAL DOES.

See you next week, Loyal Readers!