All posts by Jim Walsh

Dawg Bones

Everybody is into “tools” these days! Especially on Toolbox Tuesday!

Regular readers of this e-rag know that Tuesday is reserved for Toolbox Tuesday.  This gives me the opportunity to highlight The Toolbox, an all-day training program focusing on “tools” that you can use to properly serve students in your special education program who present challenging behaviors.

Well, it looks like the “tools” idea is catching on. SB 1566 requires Commissioner Morath to develop a “board of trustees improvement and evaluation tool.”  The “tool” must be “research- based and designed to assist a school district in improving board oversight and academic achievement.”

My Toolbox has ten tools, but it looks like the Commissioner is going to only have one.  And the board is not required to use it, unless the Commissioner is hammering (so to speak) the district with accreditation sanctions.

DAWG BONE: WE HAVE OFTEN HEARD THAT IF A MAN’S ONLY TOOL IS A HAMMER, EVERY PROBLEM LOOKS LIKE A NAIL.  LET THAT BE YOUR ZEN KOAN FOR THE DAY.

Dawg Bones

Board Member Wants to Drop In on the Campus. Problem?

The Daily Dawg for this week is going to be entirely based on SB 1566, a new law that is chock full of interesting provisions. Let’s start with the issue of board members who visit school campuses.

This can be a confusing situation for a board member.  One day you are an interested and involved parent.  You drop in at the school fairly regularly.  They know you there. They appreciate your involvement and the number of things you volunteer for.  You are welcome in the office, and even in the teacher’s lounge.

Then you get elected to the school board.  You continue to bop in for visits to the school, but now, it somehow feels different.  What to do?

As of next school year, your district will have a school board policy about this.  Here is a short excerpt from SB 1566:

A district shall create a policy on visits to a district campus or other facility by a member of the board of trustees of the district.

This is long overdue.  Superintendents and principals have expressed concerns about this issue for decades.  Board members are usually well intentioned, but sometimes unaware of how their changed status alters perceptions of the teachers.  The board member who drops in on a school, particularly if the board member has no child at that campus, creates a ripple effect. Sometimes there is apprehension bordering on fear: “What was that about?”

Superintendents sometimes view the board member visiting the campus as the first indication of a governance problem, the first sign that the board member is attempting to usurp the superintendent’s role.  Sometimes that’s exactly what it is.  Then again, sometimes superintendents overreact.

So this is an excellent issue for the board to address through policy.  That way, there will be a common set of rules, approved by the board.  Most districts already have a policy that addresses visitors to a campus, including board members.  You can find this one at GKA Local. Look for an update from TASB (it will be included with Update 109) with more specific language about board members.

DAWG BONE: THIS POLICY WILL AFFECT ALL BOARD MEMBERS.  TAKE A GOOD LOOK.

Dawg Bones

Dear Dawg: Our lawyer puts little hearts over the “i” in her signature. What do you think about that?

Dear Dawg: Our lawyer puts little hearts over the "i" in her signature.  What do you think about that?

Dear Dawg: We love our school lawyer. She is smart as they come, very responsive and a courageous advocate for us.  Just one thing bothers us.  She puts little hearts over the "i" in her signature.  I don’t want to disclose who I’m talking about, but I will tell you that her first name is Brandi and there is an "i" in the last name as well. So you can’t miss it. Every time she signs her name there are two cute little hand drawn hearts.  And I’m not talking about personal notes and cards.  She does it on briefs and pleadings that she files in court. One of my board members told me that this violates legal ethics. Another board member thinks it’s endearing.  I don’t know what to think, so I thought I’d ask you, Dawg. What would you do?  HEARTFELT INQUIRY.

DEAR HEARTFELT: I’d run far away from that lawyer as fast as I could.  You might want to see a heart over the i in a signature of the person who bakes cakes for you. Or even the person who cleans your house. But your lawyer?!?!  I don’t think so.  Our profession values gravitas.

DAWG BONE: YOU CAN’T HAVE GRAVITAS WITH A HEART OVER THE "i". 

See you next week!

Dawg Bones

Limping for a while? Does that mean you are “disabled”?

Mr. Weems went under the knife to get a torn meniscus repaired.  He missed only two days of work due to this minor surgery. When he came back to work as a teacher, he used a scooter for a while, and then a walking cane.  Eventually, the district nonrenewed Mr. Weems’s contract due to a program change. The district would no longer offer speech as a separate offering at the middle school. Instead, the language arts teachers would incorporate aspects of speech into their lesson plans.

Mr. Weems did not challenge the nonrenewal, but afterwards he filed suit, claiming that he was the victim of disability and age discrimination. He also alleged that the district retaliated against him due to his participation in the NAACP and AFT-Alliance.  Today we are going to tell you about the disability claim.

As far as disability discrimination, Mr. Weems relied on the broadened concept of “disability” that was enacted into law in 2009. Congress wanted the ADA (Americans with Disabilities Act) to cover more people.  In particular, Congress instructed the courts not to be so stingy in examining whether or not a person has a “disability.”

However, the ADA still requires proof that the person’s physical or mental impairment “substantially” limits them. This case illustrates that “substantially” is still an important component of the definition.  The court held that the evidence was so clear about this issue here that no reasonable jury could ever conclude that Mr. Weems was “substantially” limited.

But he had surgery!  His doctor ordered some limitations in the workplace.  What about that motorized scooter?  And the walking cane!! Doesn’t all of that demonstrate that the man had a “disability”?

The court said no:

Plaintiff presents no evidence that his knee injury substantially limited his ability to work, walk, stand, or perform any other major life activity as compared to most people in the general population. (Emphasis in the original).

Nor was Mr. Weems successful in arguing that the district “regarded” him as disabled.  Mr. Weems based this on the principal’s innocent inquiry to the teacher: “What’s the matter with your knee?”  The court noted that the principal “knew that Weems had surgery and that he had some limitations physically, which is a far cry from saying that Weems was disabled under the [Americans with Disabilities] Act.”

The court granted summary judgment to the district on this one.  The case is Weems v. Dallas ISD, decided by the federal court for the Northern District of Texas on May 26, 2017. We found it at 2017 WL 2306526.

DAWG BONE: SHORT TERM, MINOR PHYSICAL PROBLEMS MAY NOT AMOUNT TO A “DISABILITY.”

Tomorrow: Warning signs that you may have the wrong lawyer….

Dawg Bones

“This case raises issues about how social media can affect education….”

Cristina Esparza was principal of Barrientes Middle School in Edinburg CISD when she took a nude selfie and sent it to her husband. And only to her husband.  However, someone hacked into the principal’s account, found the picture and disseminated it to the students in the school.  Oh boy.

The school board fired Ms. Esparza.  The independent hearing examiner who heard this case did not recommend termination, but the board disagreed with that and fired the principal.  Now, Commissioner Morath has affirmed the board’s decision.

The case is not only colorful, it’s important.  The Commissioner’s decision includes a lengthy discussion about the standards for “good cause” and the power of the school board to override the hearing examiner’s recommendation.  Some key points:

  1. “Conduct sufficient to warrant termination may be unintentional conduct.” You can be fired if you are unable to perform the essential functions of the job, and this might happen through no fault of your own.  The Commissioner provides an example.  If a teacher is injured in a car accident that was not his fault, but that renders him unable to communicate with students, the board would have “good cause” to terminate the teacher’s contract.  Key Quote:

In determining whether good cause exists, what is essential is whether the employer-employee relationship has been destroyed, not whose action destroyed the employer-employee relationship.

2. There is a difference between the “hard facts” of the case and the “interpretive facts.” It’s almost impossible for the board to alter the “hard facts” as determined by the hearing examiner. But with this decision, the Commissioner gives his approval to the board changing the “interpretive facts.”

3. The “hard facts” are about what happened. Here, the hard facts were 1) the principal took the picture; 2) she sent it to her husband; 3) some unknown party got access to it; 4) it was disseminated to the kids in the school, and well known in the community. The critical interpretive fact was: has the principal lost her effectiveness?  The hearing examiner said no. The board said yes.

4. The Commissioner makes two important “conclusions of law” in this decision that lawyers will be citing in the future:

Good cause to terminate a term contract exists when an employee’s effectiveness is significantly diminished.

Good cause to terminate a term contract can exist even when an employee’s effectiveness would not have been diminished but for the actions of a third party, even the illegal actions of a third party.

Very interesting case on many levels.  This is a good one to review with your teachers, warning them about the dangers of social media, even when you think you are only sending a loving message to your spouse.  The case is Esparza v. Edinburg CISD, decided by the Commissioner on March 17, 2017.

DAWG BONE: POLAROIDS WERE SAFER.

Tomorrow: a case about the ADA….

Dawg Bones

It’s Toolbox Tuesday!! Can you set a time limit on an ARD meeting?

One of the tools in the Toolbox is Leadership at the Non-Consensus ARD Meeting. We call this one Tool #9 (of ten).  The Toolbox is a full day training program focusing on the legal issues when students with disabilities violate the Code of Conduct, or otherwise cause disruption in the school.  Many times these issues have to be addressed in an ARD meeting. Those meetings can be contentious. Leadership is needed.

So we want to make you aware of a case from Arizona.  The school held an IEP Team meeting in November, 2012, and established a two-hour time limit on the meeting. The student’s mother was present, along with two advocates.  One of the advocates informed the Team that she could not stay past the allotted two hours.  Sure enough, the Team was not finished with its work when the two hour mark was met.  The advocate suggested that the Team should adjourn for now, and reconvene at a later time. The district’s administrative representative at the meeting rejected that suggestion.  Instead of adjourning, the Team completed its work on the IEP even though the parent and advocates had left.  The district’s representative was concerned about the fact that the existing IEP was about to expire. So the Team completed its work, but also told the parent that they would re-convene to address any concerns and/or to make amendments to the IEP.  And they did that.  The parent participated in the later meeting and the Team incorporated parental input into the IEP.

However, the parent alleged that she was denied the right to “meaningful participation.”  The court disagreed, holding that the district did not infringe on the parent’s right to meaningful participation in the IEP Team process. Key Quote:

While IDEA is particularly protective of the parents’ right to participate in the child’s IEP…in this case, the District acted reasonably in protecting Parents’ rights.

You can have a time limit for your meetings, as long as it is done with agreement, and takes into account concerns expressed by the parent.  Here, the district demonstrated reasonableness, which is always a key to success in a legal dispute.

The case is Pangerl v. Peoria USD, decided by the U.S. District Court for Arizona on February 15, 2017. We found it at 69 IDELR 133.

DAWG BONE: THE UNWRITTEN RULE—THE COURT IS ALWAYS EXAMINING THE REASONABLENESS OF THE PARTIES.

Tomorrow: a principal, a nude selfie, a hacker.  You don’t want to miss this one.

Dawg Bones

Aide is canned for telling gramps that the boy was “jumping up and down. Just a boy.”

The principal had warned Ms. Macias about talking to parents without a teacher present. In fact, there were write-ups of previous incidents.  The district did not permit paraprofessionals to “conference” with parents about children. That should be left to the teacher.  Apparently this had been an issue with Ms. Macias, who worked for the district for over 20 years before her termination.

So when Ms. Macias casually answered a question from a grandfather, she was fired.  Grandpa asked how the boy did (unfortunately, the case gives us zero context for this, so we don’t know what activity Grandpa was asking about).  The aide responded: “He was jumping up and down.  Just a boy. But if you want further information, you can find the teacher.”

That may strike you as a less than compelling reason to terminate someone’s employment, but it doesn’t take much to justify the termination of a teacher’s aide, even after 20 years with the district.   The lawsuit was not about getting the job back—it was about getting unemployment benefits.  There, the standard is different, and the burden of proof is more on the employer than employee.   The Texas Workforce Commission concluded that the aide was not entitled to benefits because she was discharged for “misconduct.” The court did not agree.  The court observed that “misconduct” in this context requires a level of intentional wrongdoing that was just not present here.

This is an obscure case that illustrates an obscure but important point.  Districts can lawfully dismiss employees and still get stuck with the tab for unemployment compensation.  Proof of “misconduct” is not necessary to terminate the employment of an at-will employee, but it may be needed to fend off the claim for unemployment benefits.

The case of TWC v. Macias was decided by the Court of Appeals for Corpus Christi and Edinburg on May 25, 2017. We found it at 2017 WL 2289028.

DAWG BONE: THINGS ARE DIFFERENT BEFORE THE TEXAS WORKFORCE COMMISSION

Tomorrow: Toolbox Tuesday!!

Dawg Bones

Is Endrew F. a Game Changer for Us?

That didn’t take long. We now have a decision from the 5th Circuit applying the “new” FAPE standard enunciated by the Supreme Court in Endrew F. v. Douglas County School District.  As the Dawg predicted (not to brag….) the court held that the supposedly new FAPE standard is not new at all.  It is consistent with the standard we’ve been using in Texas for a long time.   The district court in this case used the four-part test the 5th Circuit affirmed long ago.  When it went up on appeal to the 5th Circuit the court held:

Although the district court did not articulate the standard set forth in Endrew F. verbatim, its analysis of [the student’s] IEP is fully consistent with that standard and leaves no doubt that the court was convinced that [the student’s] IEP was “appropriately ambitious” in light of [her] circumstances.”

That “appropriately ambitious” phrase is from Endrew F.  So what the court is telling us is that the standard we have been using for years is “fully consistent” with the SCOTUS view expressed in Endrew F.

The case is C.G. v. Waller ISD decided by the 5th Circuit on June 22, 2017. It’s an “unpublished” decision, meaning that it will not be written up in the official reports and will not be cited as precedent in future cases. But we found it at 117 LRP 24920 and 2017 WL 2713431.

DAWG BONE: TOLD YA. 

File this one under: SPECIAL EDUCATION

Have a good weekend, Readers! The Dawg barks again on Monday.

Dawg Bones

SCOTUS Signals OK on Vouchers for Religious Schools

Let’s assume that a few years from now the Texas legislature enacts a voucher scheme whereby parents can take public money and use it at a private school. Let’s assume that the scheme allows that public money to be spent at any private school—including a religious one.  Let’s further assume that someone challenges the constitutionality of that scheme and takes it to the U.S. Supreme Court.  Based on its latest ruling on a similar issue, I’m predicting SCOTUS rules that religious schools cannot be blocked from the program.

The case of Trinity Lutheran Church of Columbia, Inc. v. Comer was about recycled tires used to pave the playground at the church, which operates a school and daycare.  Missouri made grant funding available for these new and improved playgrounds, and Trinity Lutheran applied. Its application was a good one. SCOTUS noted that it “would have received one, but for the fact that Trinity Lutheran is a church.”   Missouri—like Texas—has a state constitutional provision that prohibits the use of any public money for the benefit of a religious institution. Based on that provision, Missouri rejected the church’s application.  Kids continued to scrape their little Lutheran knees on a pea gravel surface, rather than harmlessly bouncing off the recycled tires.

SCOTUS held that Missouri violated the Free Exercise Clause of the First Amendment.  Chief Justice Roberts cites an earlier SCOTUS case that holds that the U.S. Constitution takes precedence over the state version:

“the state interest asserted here—in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause.”  [Taken from Widmar v. Vincent, 454 U.S. 263 (1981).

The Chief’s opinion concludes strongly:

But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution…and cannot stand.

Suppose the “public benefit” is participation in a voucher program.  If a private school is prohibited from participating in that program because it is religious, and only because it is religious, how do you think Justice Roberts would rule?  I predict he rules in favor of the religious school.  You can count on Alito, Thomas and Gorsuch ruling the same way.  And Justices Kennedy and Kagan sided with Roberts on this one.  So there are at least four SCOTUS votes in favor of vouchers for religious schools, and possibly as many as six.

We shall see.

The case of Trinity Lutheran Church of Columbia, Inc. v. Comer was decided by the Supreme Court on June 26, 2017.  Seven justices ruled for Trinity Lutheran with two dissenting.

DAWG BONE: WE KINDA LIKE THE OLD DAYS, WHEN PLAYGROUNDS WERE DANGEROUS

File this one under:  RELIGION

Tomorrow: the 5th Circuit gets its first opportunity to interpret the “new” FAPE standard.

Dawg Bones

Slants, Redskins, Your School’s Mascot and the Constitution

Fans of the Washington Redskins and Cleveland Indians are probably very pleased by the Supreme Court’s decision about a rock band.  The band filed for a trademark for its name.  The Trademark office turned them down because its name violated the “disparagement clause” in the Patent and Trademark laws.  The disparagement clause prohibits the registration of any trademark that may “disparage…or bring into contempt or disrepute” and “persons living or dead.”  The band was called The Slants, a term that is commonly understood to be a derogatory reference to people of Asian descent.   The band members were Asian Americans themselves, and they chose this name in an effort to “reclaim” it.

SCOTUS held that the disparagement clause is unconstitutional.  The Court described the clause as “a happy-talk clause” designed to prevent the expression of ideas that offend.  Justice Alito’s opinion for the majority shot that down:

And, as we have explained, that idea strikes at the heart of the First Amendment.  Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful: but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”  United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).

This will not stop people from protesting the use of the name “Redskins” for the Washington football team, but it will likely sack any legal challenge to that name. And the same goes for any school mascot name that people find offensive.  In fact, public schools would have an additional strong argument to make to defend their school mascot—it is “government speech.” The government is not restricted by the First Amendment.

The case is Matal v. Tam, decided by the Supreme Court on June 19, 2017.

DAWG BONE: LOOKS LIKE ALL YOU INDIANS AND WARRIORS AND WAMPUS CATS WILL BE OK. 

File this one under: FIRST AMENDMENT

Tomorrow: what will SCOTUS say about vouchers going to religious schools?