Yesterday I told you about the suit pending in Klein ISD in which the plaintiff alleges that the district has an “unwritten policy or custom” to discipline and harass students who choose not to recite the Pledge. Today, another aspect of that case. One teacher who was sued in her individual capacity sought dismissal of the case on the basis of “qualified immunity.”

Educators are protected from personal liability due to “qualified immunity” as long as they do not violate legal principles that are “clearly established". There are numerous court cases in which the court concludes that a school administrator violated a student’s constitutional rights, but will not be held personally responsible for it because the law was too murky. It was not “clearly established.”

In the Klein ISD case, the plaintiff alleges that a 17-year old girl who had written permission from her mother to be excused from reciting the Pledge was hassled and harassed by teachers and other students.  One teacher was sued for allegedly retaliating against the girl after her mother filed the suit.  The teacher filed a Motion to Dismiss based, in part, on qualified immunity. She argued that the laws about this were not clearly established.

The court held that the teacher was not entitled to immunity:

The law establishing that student speech can only be limited when it interferes with “the work of the school or impinges upon the rights of other students” is clearly established.  The Supreme Court also clearly established, over 70 years ago, that it is unconstitutional to require a child to stand for the Pledge of Allegiance.

So here is a classroom teacher facing potential personal liability over allegations that she retaliated against a student for the exercise of free speech.  The case is Arceneaux v. Klein ISD. This particular ruling was issued by the district court for the Southern District of Texas on July 20, 2018. We found it at 2018 WL 3496737.

DAWG BONE: WHEN SCOTUS DECIDES AN ISSUE, IT’S “CLEARLY ESTABLISHED.”  

Tomorrow: The Dawg considers a religious conversion.

Klein ISD is facing potential liability over the treatment of a student who refused to stand during the recitation of the Pledge of Allegiance.  The case has a long way to go. All that has happened so far is that the court refused to dismiss the case. The court ruled that the allegations in the suit stated a possible violation of the constitutional rights of a student. So the case continues.

The suit alleges that the 17-year old girl was repeatedly harassed and treated badly by teachers for her refusal to stand for the Pledge.  Texas law allows a student to not participate in this daily exercise with parental approval. This student’s parent approved.  So the student should have been excused from participation, but the suit alleges that the girl caught ten kinds of grief from teachers who objected to her viewpoint, while the school administration did nothing about it.

Of course the district had all the proper written policies in place, but the court held that there was something else going on, or at least, that the lawsuit alleged this to be the case:

The plaintiffs’ allegations support an inference that Klein ISD had an unwritten custom or practice of requiring students to stand during the Pledge and of disciplining and harassing students who refused to stand.

The suit enumerates several incidents involving several teachers.  The most gobsmacking allegation in the case is that one teacher compared those who refuse to stand with “Soviet communists, members of the Islamic faith seeking to impose Sharia law, and those who condone pedophilia.”  Whoa.  This same teacher required the kids to listen to and reflect upon Bruce Springsteen’s “Born in the USA.” The court noted that the teacher “apparently did not listen to the words or he did not understand them.”

We will have more to say about this one tomorrow, when we talk about the teacher who claimed qualified immunity.  Stay tuned. The case is Arceneaux v. Klein ISD. The court’s ruling on the preliminary motion to dismiss was issued by the federal court for the Southern District of Texas on May 22, 2018 and we found it at 2018 WL 2317565.

DAWG BONE:  PUNISHING A STUDENT FOR EXERCISING A CONSTITUTIONAL RIGHT IS A VIOLATION OF THAT CONSTITUTIONAL RIGHT.

Tomorrow: Can a teacher be personally liable for punishing a student who refuses to say the Pledge?

The Toolbox Training is a full day program devoted to the legal issues surrounding the discipline of students with disabilities.  We review ten “tools” that are available to school personnel to accomplish two goals: first, to serve every student appropriately; second, to maintain a safe and healthy climate on your campus.  In the Toolbox, I repeatedly emphasize that Tool #1 is your most important tool. Tool #1 is a BIP—a Behavior Improvement Plan.

Spoiler alert: one of the hypotheticals we work on in the Toolbox is a fairly straightforward disciplinary situation. A student is caught in the act of selling drugs on campus to another student. What do you do? What “tools” do you use?  I find the participants are quick to identify several tools that are available.  This is a crime, so we use Tool #10—call the cops.  It’s a “special circumstances” case, so we use Tool #5—removal for up to 45 school days.  Some districts might also use Tool #6—a disciplinary removal for an even longer period of time, if the behavior is not a manifestation of disability.

Every once in awhile someone brings up Tool #1—this drug dealing kid needs a BIP!  Indeed, he does.  Our ARD paperwork routinely asks the Committee this question: does the student have behaviors that impede the learning of the student or others?  We ask that question at every annual ARD meeting, but I suggest that we ask it at other times as well. Like when we discover that a student is dealing drugs at school.

Punishment for such behavior is what Chapter 37 calls for, and that’s perfectly legal. But will it improve the student’s behavior? Is there any data to support the idea that the student will learn something from that?  I’m skeptical.  So in the Toolbox we emphasize that the larger goal is to teach the student appropriate behaviors.

This is a good thing to keep in mind as we start a new school year. And if you are interested in Toolbox Training, let me hear from you.

DAWG BONE: YOUR MOST IMPORTANT TOOL: TOOL #1—A BIP. 

 Tomorrow: Sitting down during the Pledge….

It’s that time of year again.  The Dawg is about to begin the tour of Texas with a full day “Back to School” program. As usual, this year we will divide the day into four quarters, each dedicated to an area of school law that administrators, teachers and board members need to know about. This year we will cover:

PERSONNEL:  Grievances, documentation, transfers, terminations, nonrenewals, sexual harassment and personal liability.

STUDENTS: Social media, discipline, free speech rights, search and seizure, bullying.

SPECIAL EDUCATION: Discipline, ARD meetings, evaluations and a special emphasis on serving students with dyslexia.

THE CULTURE WARS COME TO YOUR SCHOOL: Sex, politics, religion and the public school.  Oh boy.

I hope you can join me at one of these. Here’s the schedule for this year:

September 10:             Region 17                    Lubbock

September 13:             Region 10                    Richardson

September 14:             Region 11                    Fort Worth—with co-presenter Haley Turner

September 24:             Region 13                    Austin—with co-presenter Haley Turner

September 27:             Region 20                    San Antonio—with co-presenter Haley Turner

October 1                    Region 7                      Kilgore

October 5                    Region 19                    El Paso

October 8                    Region 18                    Midland/Odessa

October 15                  Harris County DOE    Houston

October 19                  Region 2                      Corpus Christi

I’m delighted to have my law partner, Haley Turner, join me for three of these—Fort Worth, Austin and San Antonio.

The annual BTS tour is once again sponsored by Texas School Administrators’ Legal Digest. To register, go to www.legaldigestevents.com.

DAWG BONE: COMING YOUR WAY SOON!

 Tomorrow: Toolbox Tuesday!

Sometimes it’s a pain in the butt to be a lawyer.  We are the ones who have to squelch good ideas because they might violate the law.  Consider: a shop class that is limited to “girls only.”

That just strikes me as a good idea.  It just makes sense to me that girls would feel more comfortable exploring the male dominated world of tool belts and circular saws in a place where the boys were not looking over their shoulders, overly eager to “mansplain” some things.  But, of course, if you hang a “girls only” sign on the door, you are inviting a Title IX lawsuit.

That doesn’t seem to have slowed down Kristina Carlevatti, a teacher at Myers Park High School in Charlotte, North Carolina.  Her auto repair classes were dominated by boys for many years, with only a few brave females taking part. But when she opened up a “girls only” class it quickly filled up with 16 students.

I’m sure not all of you agree with me. But it seems to me there are good reasons to intentionally create environments that help to overcome gender stereotypes.  Boys are “supposed to be” comfortable and competent with tools, grease, oil and dirt, even though we know that many boys are not.  I speak from experience.  The most complicated home repair I can do is changing an AC filter.  I can gas up my car very expertly, but that’s about it.  Girls are not “supposed to” want to work on cars, but some of them do.  It makes sense to me that girls might thrive in a classroom that is intended to break that stereotype.

Anyway, that’s my opinion for what it’s worth, and it’s not worth much in a Title IX situation.   If you think single-sex shop classes are a good idea, you need to talk to your lawyer about how to structure that to survive a challenge.  The law. Sigh.

 DAWG BONE: JUST BECAUSE IT’S POPULAR DOESN’T MEAN IT’S LEGAL.

 Enjoy the weekend, folks!! We will be back on Monday.

It’s a good thing when parents are actively engaged in the child’s education.  When parents explore their child‘s strengths and weaknesses by obtaining outside evaluations and then share that information with the school it can make for a collaborative relationship that fosters student success. But the lesson of a Circuit Court decision from last year is that schools should not become dependent on the parent providing information. Our responsibility as educators is to be PROACTIVE in seeking out the information we need.

This came up in a case from the District of Columbia. The Circuit Court ultimately concluded that the district failed to provide the child with a FAPE by being too passive:

…the district court emphasized the school’s responsiveness.  The IDEA does, to be sure, require schools to respond meaningfully to parents’ reasonable requests.  But merely reacting when parents complain is not enough.  A school has an affirmative obligation to “conduct a full and individual initial evaluation” of an eligible student “before” it begins providing services.  If it considers only whatever information parents pass along, a school may miss what reasonable evaluation would uncover and, as a result, offer an inadequate education.

This is a case where the court noted that the Supreme Court’s decision about FAPE in 2017 (Endrew F. v. Douglas County) had “raised the bar” for schools serving students with disabilities.  It’s a strong message that our “Child Find” responsibilities are active, not passive.  In a state that has been found to have grossly violated Child Find duties, this is a message we should take to heart.

The case is Z.B. v. District of Columbia, decided by the Circuit Court for the D.C. Circuit on May 1, 2018. We found it at 888 F.3d 515 and at 72 IDELR 27.

DAWG BONE: IF YOU THINK THE CHILD MAY HAVE A DISABILITY DO YOUR OWN EVALUATION.  DON’T RELY EXCLUSIVELY ON OUTSIDE EVALS.

School just started and you already found a mistake in a student’s IEP.  The kid is supposed to get PT once a week, but the IEP says “once a month.”  You know that this was just a mistake, innocently made. Everyone at the ARD meeting understood that the student would be getting PT once a week. But there is that document….What should you do?

Fixing the error without notifying the parent could be costly.  This is essentially what happened in the Antelope Valley School District in California in a case that ended up before the 9^th Circuit. In that case the IEP called for 240 minutes of services from a VI teacher. But the IEP said 240 minutes per month, when it was supposed to say 240 per week. The district changed the IEP without formally amending the IEP.  Both the hearing officer and the district court were OK with this, but not the 9^th Circuit:

An IEP is a contract…..The school district is not entitled to make unilateral changes to an IEP document any more than any other party to a contract.  If the District discovered that the IEP did not reflect its understanding of the parties’ agreement, it was required to notify [the parent] and seek her consent for any amendment.

The court thus held that the district denied FAPE to the student. Some of you are probably thinking: “But wait—the district changed the document to provide MORE services, not less! How can that be harmful to the parent?”

Good question. The court found that the district‘s unilateral change to the document kept the parent in the dark, and thus infringed on the parent’s right of meaningful participation in the process. This is an excellent example of the legalistic, lawyer-driven system IDEA has created. I’m sure that not all judges would have ruled this way, but these three judges on the 9^th Circuit did. So take note and be careful.

If you find an unintentional error like this in an IEP document do not simply correct the error. Contact the parent.  Tell the parent what you found and how you’d like to fix it.  Obtain the parent’s approval.  Then do a simple IEP Amendment and put it in the file.

This case is M.C. v. Antelope Valley Union High School District, decided by the 9^th Circuit in May, 2017.

DAWG BONE:  IT’S MORE PAPERWORK. BUT THAT’S THE WORLD WE LIVE IN.   

Tomorrow: why you should always do your own evaluation of the student.

A recent decision from the 2^nd Circuit sheds light on how courts will view educational progress for students served in an alternative setting, such as a DAEP.  This is a good topic for Toolbox Tuesday, which is when we highlight the Toolbox—a full day training program regarding disciplinary options in dealing with students with disabilities.

The case involved a student who sailed through school until 10^th grade, when some serious emotional issues surfaced.  Long story short: the district and the parents agreed that the boy needed special education services and would do well at STRIVE—Success Through Responsibility Initiative Vision Education. This is an alternative program the Connecticut district offered. From the description of it in the court’s opinion STRIVE sounds a lot like our DAEPs, except that it is designed to serve only students with disabilities. In Toolbox terminology, then, the parties used Tool #2—a change of placement to a more restrictive environment done with parental agreement.

All went well at STRIVE. The boy made good grades, passed the statewide tests and graduated.  But when the parents sought financial support for post-graduation services, they argued that STRIVE was an inadequate program that denied the student FAPE.  In response, the school produced the record of the student’s 3.0 GPA and the reports from his teachers, attesting to his solid progress at STRIVE.  The parents argued that grades at STRIVE were not the same as grades earned at the regular high school.   Here’s what the court said about that:

While STRIVE is an alternative high school, not a regular education environment, STRIVE’s curriculum is aligned with that of the regular education at West Hartford high schools in terms of content.

A teacher supported that by testifying that they used the same instructional materials as the regular high school and the student’s reading level was “right on grade level.”

Good grades in the general, unmodified curriculum produce good evidence of FAPE. That’s so whether it’s the “regular” school or an alternative.  This is the kind of thing we talk about in the Toolbox training. If interested in the Toolbox, give me a buzz!

The case is Mr. P. and Mrs. P. v. West Hartford Board of Education. Decided by the 2^nd Circuit Court of Appeals on March 23, 2018.  We found it at 2018 WL 1439719 and 885 F.3d 735.

DAWG BONE: SAME CURRICULUM.  SAME RIGOR.  A 3.0 IS A 3.0.

Tomorrow: Oops!! A mistake on the ARD paperwork.  What could go wrong?

This is the first day of school for many districts, including Austin ISD where my grandchildren attend. So The Dawg hereby declares this NEW YEARS DAY!! So we wish all of you well as you begin another lap around the track, so to speak.

What will happen this year? A child in the Panhandle will discover that the letters on the page form words that the child can say out loud. She is reading! A 22-year old teacher in the Valley will find out just how hard this business is. But by next May, he will have developed a better set of classroom management skills, and will be thinking….maybe I can do this. A brand new assistant principal behind the Pine Cone Curtain in East Texas will handle her first student discipline matter, her first angry parent phone call, her first classroom observation. A senior, somewhere in the Hill Country, will shed tears while playing the tuba as the band performs at the final home football game. A brand new superintendent in West Texas will deal with some ugly public comment at the board meeting, and then frantically reach out to her mentor to ask: “How do you handle this???”

Teacher lounges all over the state will witness the full range of human emotions—the weeping and gnashing of teeth; out of control laughter; exuberant joy. Some football teams will win state championships. Some coaches will be fired.

As citizens, we will choose new leaders in November. In January, they will come together in Austin. By next May they will pass new laws, some of which we will like, some of which we will not.

At Walsh Gallegos Trevino Russo & Kyle, we will have your backs. We’re ready—at the telephone, at the board meeting, at the inservice, in the courtroom. Let’s work together to make this a good year.

DAWG BONE: READY OR NOT: HERE WE GO!

Tomorrow: Toolbox Tuesday visits an alternative school.

Yesterday we told you about the 10^th Circuit decision in favor of an A.D. who wrote a letter to a judge, seeking leniency in the criminal sentence of the A.D.’s nephew who had pled guilty to manufacturing child pornography and other crimes.  The court held that the man was exercising his right of free speech when he penned that letter, and thus, he should not have been fired.  The school district faces potential liability for wrongful termination.

What about the superintendent? He’s the one who made the decision to recommend the termination of the A.D.  The 10^th Circuit dismissed the superintendent from the case due to the “qualified immunity” doctrine.  Pursuant to that legal doctrine, an individual school administrator is not automatically legally liable for a constitutional violation. The plaintiff has to prove that “the constitutional right at issue was clearly established at the time of the violation.”

Well, it was certainly “clearly established” that school employees have free speech rights. It was clearly established that when a school official speaks out on a “matter of public concern” they enjoy constitutional protection. But that’s not enough. The plaintiff has to show that this general constitutional right was “clearly established” in the particular factual context of the case.  This case addressed the issue of whether or not a sentencing decision in a criminal case is a “matter of public concern.  The court held:

As described above, we hold that a sentencing decision is a matter of public concern for the purposes of the First Amendment. But this proposition was not clearly established in our circuit at the time [the superintendent] acted.

So the superintendent is immune from liability and dismissed from the case.  This seems fair.  After all, in this very case the federal judge at the district court level held that the A.D. was not speaking on a matter of public concern. So if it wasn’t “clearly established” to a federal judge, how can it be “clearly established” to a non-lawyer school superintendent?

The case is Bailey v. ISD No. 69 of Canadian County, Oklahoma, decided by the 10^th Circuit on July 24, 2018. We found it at 2018 WL 3543064.

DAWG BONE: MOST OF YOU READERS ARE PROTECTED FROM LIABILITY BY QUALIFIED IMMUNITY.  YOU SHOULD PUT THIS ON YOUR DAILY GRATITUDE LIST.