Haley Turner and I bring the Back to School program to Region 11 today.  Hello Fort Worth!

Meanwhile, back at the office I’m still culling out old overhead transparencies. I’m getting rid of most, but hanging on to a few that are funny, or otherwise appropriate for mention in the Daily Dawg.  I came across two overheads that have nothing to do with the law, but might be of interest to high school administrators in particular, as they deal with teenagers.

The first is an 1835 quote from Alexis de Tocqueville: “In America, there is in truth no adolescence.  At the close of boyhood, he is a man and begins to trace his own path.”

Well…that was then and this is now. In a 1999 book entitled “The Rise and Fall of the American Teenager” author Thomas Hine notes the truth of de Tocqueville’s assertion, but then points out how things have changed:

Throughout history, Americans in their teens have often played highly responsible roles in their society.  They have helped their families to survive. They have worked with new technologies and hastened their adoption.

Young people became teenagers because we had nothing better for them to do. High schools became custodial institutions for the young.

We stopped expecting young people to be productive members of the society and began to think of them as gullible consumers.

We defined maturity primarily in terms of being permitted adult vices and then were surprised when teenagers drank, smoked or had promiscuous sex.

DAWG BONE:  GOOD LUCK TO THE TEACHERS AND PARENTS OF TEENAGERS!

See you next week! May all of your football teams win glorious victories!!

I’m at Region 10 today for the annual Back to School tour. We have a bunch of BTS programs still to come, so sign up if you haven’t already: www.legaldigestevents.com.

Today we offer yet another example of how our special education system sometimes produces results that boggle the imagination. It’s a 3^rd Circuit decision from the Philadelphia school system.  Here’s a short and sweet summary of a complicated situation.

Largely due to faulty communication, the district did not have IEPs in place at the start of the 2013-14 school year for two twins with autism. The parents created a private school and placed the boys there.  The court held that the district denied FAPE from September to December of 2013, at which time the district put good IEPs on the table for each of the twins.  The parents were entitled to tuition reimbursement from September to December due to the denial of FAPE.

You might think that since the district put good IEPs on the table in December 2013, that that would put an end to any district responsibility for private school tuition.   If this case was decided strictly on the basis of FAPE, that would be true.  But due to “stay put” the parents also obtained reimbursement for the remainder of that school year and all of the next three as the parties continued to litigate.  That added up to $466,000 along with a boatload of attorneys’ fees.

Let that sink in: the district’s failure to provide FAPE to two students for about four months cost the district well over half a million dollars.  The case of School District of Philadelphia v. Kirsch was decided by the 3^rd Circuit on February 5, 2018. We found it at 71 IDELR 123  and 722 F. App.x 215.

DAWG BONE: YOU GOT TO KNOW WHEN TO HOLD ‘EM.  KNOW WHEN TO FOLD ‘EM.

 Tomorrow: reflections on American teenagers from the 19^th Century to the 21^st.

I’ve learned a bit more about PT (Physical Therapy) since my wife fell off the Segway and broke her ankle.  We got a prescription for a certain number of PT sessions, which have been provided by a couple of licensed physical therapists, and have been very helpful.  But school districts are not obligated to fulfill medical prescriptions.  The public school is not Walgreens.

The 6^th Circuit recently reminded us of this. One of the issues before the court was the decision of the IEP Team not to provide PT to a student with a disability:

Although [the parents] challenge [the school’s] conclusions by pointing to [the child’s] doctor’s prescription for occupational and physical therapy, “a physician cannot simply prescribe special education.”  The IDEA does not require schools to provide physical and occupational therapy to all students who might “benefit from or need” those services outside of the educational context; rather, the IDEA only requires schools to provide those services to students who required them in order to receive “the full benefit of special education instruction.”  We therefore find [the child’s] educators’ numerous assessments a better indicator of her need for special education services than [the child’s] doctors’s prescription.

The case is M.G. v. Williamson County Schools, decided by the 6^th Circuit in an “unpublished” decision on January 9, 2018.  We found it at 71 IDELR 102, and 720 F. App.x 280.

DAWG BONE: DOCTORS KNOW MORE ABOUT MEDICINE THAN EDUCATORS.  EDUCATORS KNOW MORE ABOUT EDUCATION THAN DOCTORS.

Tomorrow: how the “stay put” rule cost a school district over half a million dollars.

Dear Dawg: I know that our principals can suspend a student with a disability for up to ten school days during the year, cumulatively.  I heard you call this the “FAPE Free Zone.”  Well, we had a discussion about this at our special education staff meeting and a question came up. We have a student who will probably not be suspended at all this year.   He’s a model student and has never been written up by a teacher, much less suspended.  So we expect that he will not use any of his “FAPE Free” days on discipline.  But we were wondering if we could use his “FAPE Free” days for a little experimentation. We’d like to move him out of his current placement, just for a little while, to see how he does in other settings.  We’d prefer to do this without involving the parent. It would only be for a few days—no more than ten.  We’d still be serving him, but not in the way or in the setting called for by his IEP. We get 10 days, right? Can we do this for 10 days?  FORWARD THINKER.

DEAR FORWARD THINKER:  No!

And I think I will leave it at that.  Wise people have told me that “no” is a complete sentence.  But I will only add that if you want to know more about how the FFZ works, and why it should not be used in this way, you might be interested in a Toolbox Training.  If so, let me hear from you.

DAWG BONE: FAPE FREE ZONE IS ABOUT DISCIPLINARY REMOVALS, NOT “EXPERIMENTATION.”

 Tomorrow: if the doc prescribes physical therapy does the school have to provide it?

Hello Lubbock!!  The Dawg kicks off the Back to School tour at Region 17 in Lubbock today.  I will be reviewing cases from the past year that deal with students, parents, and employees.   If time permits, we might even get to discuss the very recent and interesting case of Texas Commissioner of Education v. Solis. 

 Dr. Solis lost her appeal to T.E.A. because the Agency ruled that it lacked jurisdiction to hear the case. T.E.A. held that Dr. Solis had not exhausted administrative remedies at the school district level—therefore, she could not take the matter to T.E.A.

The Court of Appeals has reversed that decision and sent the case back to the Agency for a ruling on Dr. Solis’s appeal.  This is an important case for lawyers who handle cases before the Agency.  It’s also a setback to the Agency’s view of its own jurisdiction.

What’s this about?  Mission CISD hired Dr. Solis on a “non-chapter 21” contract for the 2012-13 school year. The contract was very explicit: Chapter 21 procedures did not apply.  If the district decided not to renew the contract, the district would not be obligated to go through the nonrenewal procedures required by Chapter 21.  At the end of the 2012-13 school year, the district informed Dr. Solis that she would not be brought back for the next year.

So what could she complain about? After all, she signed a contract that made it very clear that she was not protected by Chapter 21. What’s the gripe?

The district hired Dr. Solis as Executive Director for State and Federal Programs. But two months into the contract, the district reassigned her to be an assistant principal at a middle school.  Spring rolled around and the district chose not to renew the contract.  Dr. Solis at first claimed that this was an act of retaliation because she had previously filed a grievance.  The board gave her a hearing on that, and upheld the Superintendent’s decision not to offer another contract.

Dr. Solis then appealed to T.E.A.  After some preliminary skirmishing, Dr. Solis tried to make her case under Texas Education Code 7.057, which allows parties to appeal to T.E.A. if they are “aggrieved” by actions  of the local school board that “violate the school laws of this state.”

T.E.A. ruled against her without ever addressing the very interesting issue at the heart of this case: can a district 1) give an employee a non-Chapter 21 contract; 2) move the employee to a position that requires a Chapter 21 contract; and then 3) nonrenew the contract without providing Chapter 21 procedures?  T.E.A. did not answer that question.  It ruled that it lacked jurisdiction in the case because Dr. Solis had not raised this specific issue before the local board. Thus, she failed to exhaust her administrative remedies.

Now, the Court of Appeals has sent the case back to T.E.A. for a decision on the merits. In the meantime, we learn from this case that a person can appeal to the Agency over any decision by the local school board if they allege that the board’s action violates the school laws of Texas.   Key Quotes:

The statute does not require that the aggrieved person have participated in a hearing before the board, but only that the board have made a “decision” or taken “action.”

In the Commissioner’s view, if no hearing is held at the school district level and no administrative record is created, there is nothing for the Commissioner to subject to substantial evidence review. We disagree.

Section 7.057 of the Texas Education Code provides for an appeal to the Commissioner when a person is aggrieved by an action or decision of a board of trustees that violates the Texas school law.  The Commissioner may not, through his rules or policies, narrow the availability of that appeal.

This case is probably of more interest to lawyers than educators, as it is about the legal doctrine of “exhaustion of administrative remedies.”  As a general rule, courts do not hear cases that could be decided by administrative agencies until after the administrative agency has ruled on the case.  In this case, T.E.A. applied that same standard to parties who want to appeal from a local school board to the state agency.  The court emphatically tells the Agency that the “exhaustion” doctrine does not apply in that situation.

Interesting. What will be even more interesting is the Agency’s ultimate decision about Dr. Solis’s reassignment and nonrenewal without hearing.  Stay tuned.

The case of Texas Commissioner of Education v. Solis was decided by the Court of Appeals in Austin on August 22, 2018. We found it at 2018 WL 3999598.

DAWG BONE: EXPECT TO SEE MORE APPEALS TO T.E.A.

Tomorrow: Toolbox Tuesday! Let’s re-visit the FAPE Free Zone.

So we’re involved in a major renovation here at Walsh Gallegos.  Our Austin office is a bit more than ten years old, and showing the wear and tear. So now we are getting new carpets, paint and all that. As a result, we’ve been cleaning and up and re-organizing a lot. That means you will find stuff that you haven’t seen in a long, long time.

Like a whole file cabinet of overhead transparencies.  I used to travel around with these, using a lot of these “overheads” in my presentations. Along came PowerPoint and that was the end of that. But I guess we never tossed them. So I’ve been going through them. They do have some sentimental value for me. I used to consider myself on the cutting edge of presentation skills when I whipped out a dozen “overheads.”

Anyway, I found some fairly useful stuff on some of these.  Like this one that was aimed at Board Presidents:

THE LEADER OF THE PACK:

YOUR JOB AS BOARD PRESIDENT

1. Remember that your role as board president gives you more responsibility, but not more authority, than other board members.
2. Knowledge of parliamentary procedure is important.
3. Good communication skills are more important.
4. Follow your policy re: public comment and timelines.
5. Follow your policy as to how things get placed on the agenda.
6. Develop the skill of shutting someone up with tact and diplomacy.
7. Intercede with fellow board members before trouble gets out of hand.
8. Study the Open Meetings Act.
9. Serve as principal conduit for legal advice on matters pertaining to the board.
10. Study the E.B.B.

That last one refers to the “Enormous Blue Book” a/k/a the TASB Policy Manual. Which is now all online, of course. No more E.B.B., but it’s still very important to study local policy.

Hope you find that helpful. See you next week!

DAWG BONE: IT’S A GOOD THING WE SWITCHED TO POWERPOINT. WEIGHS A LOT LESS.

 Headed to Lubbock for the first Back to School Program. See you there on Monday, Region 17!

Jane Doe (her again) tore her ACL. She alleged that the basketball coach then bullied and harassed her.   Doe filed suit against the school district based on Title IX (sex discrimination) and Section 504/ADA (disability discrimination).   The court found no merit in either claim.

The court noted that the lawsuit included nine pages of factual allegations, which is well above average.  However, none of those allegations indicated that the coach was treating Ms. Doe badly because of her sex.  There is no Title IX claim unless there is sex discrimination. The plaintiff alleged that the coach hassled her over her injury—but not because of her gender.  So much for that.

But what about the 504/ADA claim? After all, surely a torn ACL makes a person “disabled.”  Actually, the court held that it does not. The court noted that “Merely having an impairment does not make one disabled.”  To be a “person with a disability” as the term is used in the law, the impairment has to “substantially limit” the person in a “major life activity.”  Here, the plaintiff alleged that the “major life activity” was basketball—which she equated with “her life.”  Jane Doe is apparently a very good basketball player, and she loves the game.

But that doesn’t make it a “major life activity.”  We don’t get to define what is “major” based on our personal preferences.  The term “major life activity” is defined in the law and does not include basketball.  It doesn’t even include watching football on TV on a fall afternoon.  The legal definition leaves room for interpretation, but as the court noted, prior rulings had already established that “Participating in sports is not a major life activity.”

The court also noted the transitory nature of this injury. The pleadings in the case indicated that the “impairment” would last for less than six months.  Tearing an ACL is painful and temporarily disabling. But people do recover.

So whatever bad treatment Ms. Doe may have endured was not because of her sex.  And she failed to get to first base on her disability discrimination claim because she did not qualify as a “person with a disability.”  I hate to use a baseball metaphor in a basketball case, but I think it makes the point.

The case is Walter, as next friend of Jane Doe v. Birdville ISD, decided by the federal court for the Northern District of Texas on August 20, 2018.  I’m proud and pleased to report that Birdville ISD was represented in this case by Meredith Walker of our firm’s Irving office. Great work, Meredith!

DAWG BONE: BASKETBALL MAY BE “YOUR LIFE” BUT THAT STILL DOESN’T MAKE IT A “MAJOR LIFE ACTIVITY.”

 Tomorrow: Good stuff for board presidents found on an old overhead slide.

Near the end of its 18-page decision in favor of Denison ISD, its superintendent, A.D., and baseball coach, the court sums things up nicely:

While the Court understands that these actions were not petty to Plaintiff, it is the normal course of events in organized athletics that players (and their parents) will disagree with coaching decisions and believe they have been treated unfairly by such decisions.  However, not every unfair or unpleasant experience is actionable.

I think that’s a judicious way of saying: “Get over it, kid.”  The plaintiff alleged that the coach had made some inappropriate remarks about the player’s mother. Then there was what the court described as “the Vaseline Incident.”  According to the player, the coach instructed him to put Vaseline on his glove while he was pitching. This would enable the kid to throw a doctored baseball, which is cheating.  The player alleged that he and his parents reported these improprieties to the superintendent, and that the retaliation followed that.

So we have the outline of a possible First Amendment retaliation claim: I spoke truth to power and power smacked me down.  There is a lot more legalese in First Amendment retaliation cases than that, but that’s the essence of it.

The court tossed the case out because “Plaintiff has not suffered an actionable constitutional harm.”  The student was not jailed, sent to DAEP, or suspended from the team.  He just didn’t get to play first base.  He also alleged that the coach did not talk to him anymore.  Citing an earlier case, the court noted that “some retaliatory actions….are too trivial or minor to be actionable.”

The court emphasized that a First Amendment case involving the operation of a public school has to take into account “the special characteristics of the school.” Coaches will be pleased to hear that the judge was reluctant to “micromanage” the baseball team:

If education and faculty appointments are ill suited for federal court supervision, disputes involving playing time, coaching decisions, and interactions between players and coaches at the high school level are even less suited.

Bottom line:

…the Court finds that Plaintiff’s allegations of retaliation, even if true, are at most, trivial matters common to interaction between coaches and players—especially as it relates to disagreement with coaching decisions—and therefore, as a matter of law, do not give rise to an actionable First Amendment retaliation claim.

Case dismissed.  But let’s address one other issue. This all began with allegations that the coach did some things he should not have done.  The district denies that anything improper happened, and the court did not rule on it one way or the other. The point of the decision here is that allegations like that can be properly handled through administrative channels, and do not need to be clogging up the dockets of our federal courts.

The case is Wright v. Denison ISD, decided by the federal court for the Eastern District of Texas on August 20, 2018.  I’m proud and pleased to report that the excellent lawyering in this case was done by the Walsh Gallegos law firm.  Meredith Walker of our Irving office took the lead, with able assistance from Craig Wood and Laura McLean.

DAWG BONE: NO CONSTITUTIONAL RIGHT TO PLAY FIRST BASE.  OR EVEN CENTER FIELD.  NOPE—NOT PITCHER EITHER. 

Tomorrow: We turn from baseball to basketball. 

A court case from the District of Columbia illustrates the interplay of two of the ten tools that we discuss in the full day “Toolbox Training.”  The Toolbox is designed to assist school personnel to deal with students in your special education program who present particularly challenging behaviors.  In the case from our nation’s capital, the district sent a student to an IAES (Interim Alternative Educational Setting) after he beat up another student, causing a concussion. This is the use of Tool #5—a Removal Due to Special Circumstances.  In this case the “special circumstance” was the infliction of “serious bodily injury.”  The removal was for the maximum authorized by Tool #5—45 school days.

However, the school did not want to re-admit the student after the 45 days.  What to do now?

Let’s back up for a moment.  The student’s IEP Team met after the assault and concluded that the student’s behavior was a manifestation of his emotional disability.  This meant that Tool #5 was available—the removal for 45 school days—but Tool #6 was not. Tool #6 is a traditional disciplinary removal, which does not have to be limited to 45 school days.  If the IEP Team had concluded that the assault was not a manifestation of disability, the school, as per Tool #6, could have ordered his removal to an IAES for more than 45 school days.

Since the school used Tool #5 it faced a dilemma after the 45 days.  Normally, they would admit the student back to the campus and placement he had been in before all this trouble.  However, the school was not willing to do that. School administrators continued to believe that the student was very likely to hurt someone again if they re-admitted him. What to do?

The school attempted to order another 45-day removal, but the court shot that down.  Tool #5 is “special” because it authorizes a removal of the student even though the behavior was determined to be a manifestation of disability.  The principal can order this removal without any approval from the hearing officer or court.  But the tradeoff is that Tool #5 cannot be renewed by the school.   You can’t unilaterally extend it.

That’s where Tool #4 comes into play.  Tool #4 authorizes the school to seek the student’s removal due to concerns that the student is “substantially likely” to injure someone if the student is simply returned to the original placement.  Tool #5 can be exercised unilaterally by the campus principal. Tool #4, however, requires approval by the hearing officer or a court.

That’s what happened here. The court concluded that there were significant safety concerns, and the continued removal of this student would be appropriate. Let’s put this in context: this removal was only for another ten days, which is when the pending due process hearing decision was expected to finally resolve the matter.

We call Tool #5 the principal’s tool, since principals are usually the ones who can order an IAES removal. Tool #4 is usually the superintendent’s tool, as it involves seeking legal services to obtain an order from the hearing officer or court.

I hope that doesn’t sound too complicated. In the Toolbox we sort all this out and practice using the tools with some hypothetical situations.  Interested?  Let me hear from you.

This case is Olu-Cole v. E.L. Haynes Public Charter School, decided by the federal court for the District of Columbia on February 23, 2018. We found it at 71 IDELR 194 and 292 F.Supp.3d 413.

DAWG BONE: TOOL #5 CAN BE USED “UNILATERALLY.”  NOT SO WITH TOOL #4.

 Tomorrow: Where does the Constitution say that I get to play first base?

The problem with being a lawyer and a Christian is the Scriptures. We are the only profession condemned in Scripture.  From Genesis to Revelations, just about every profession is mentioned. There are kings, servants, soldiers, tax collectors, doctors, teachers.  I don’t recall any specific mention of educational diagnosticians, but there are soothsayers and prophets, which are sort of similar.  There are lots of hookers in the Bible, and every one of them is given a chance for redemption.

But it says: “Woe unto you, lawyers!”  Luke 11:46. Sheesh.  This is not some obscure verse buried in Numbers. It’s Jesus hisownself talking. “Woe unto you, lawyers!”  Who wants “woe”???

So I was speaking at a conference in Provo, Utah recently and I mentioned this to the audience, and then asked: what does the Book of Mormon say about lawyers?  I figured there would be more than a few LDS members in the crowd.

One of them sent me this:

Now they knew not that Amulek could know of their designs. But it came to pass as they began to question him, he perceived their thoughts, and he said unto them: O ye wicked and perverse generation, ye lawyers and hypocrites, for ye are laying the foundations of the devil; for ye are laying traps and snares to catch the holy ones of God.  Ye are laying plans to pervert the ways of the righteous, and to bring down the wrath of God upon your heads, even to the utter destruction of this people.  Alma 10: 17-18.

Yikes.  Jesus promises us “woe” and Amulek calls down “the wrath of God” upon us.  We are accused of laying traps, snares and the foundations of the devil. I thought I was simply trying to help people understand the nepotism laws of Texas, and how to conduct a proper manifestation determination.

We will trudge on.  I’m going to explore the Upanishads. Surely there is some major religion out there that will give us lawyers a break.

DAWG BONE: I LIKE BEING A LAWYER, BUT….SOMETIMES IT’S UNCOMFORTABLE.

 It’s Labor Day Weekend, folks!! Enjoy.  The Dawg returns on Tuesday.