All posts by Jim Walsh

Dawg Bones

Can I attach a list of “Disacknowledgements” to my master’s thesis?

Dear Dawg: I’m about done with my Master’s Thesis at last! It’s been an ordeal, and I have to say that certain people in the university have been of no help whatsoever.  It’s customary for people to include an “Acknowledgement” section at the end of a major piece of work like this, giving recognition to God, mom and dad, my third grade teacher, my barista, my dog…whatever.  I was thinking of going in the opposite direction and including a list of “Disacknowledgements.”  What do you think?  I figure it’s my free speech right to say speak truth to power. Any risk to me in doing this?  CALL ME UNGRATEFUL.

DEAR UNGRATEFUL:  Yessir, there is some risk. We came across a wonderful case where a guy almost lost his degree from the University of California Santa Barbara for similar behavior.  Part of the problem was that the guy was sneaky.  He submitted his thesis to his committee with no “acknowledgement” section at all.  Got it approved.  Then he submitted a “new and improved” version to the university library where all theses were kept.  The new version included this:

Disacknowledgements: I would like to offer special F*** You’s to the following degenerates for being an ever-present hindrance during my graduate career.

 The list of “degenerates” included the dean and staff of the graduate school, the managers of the library, a former governor of California, and the Board of Regents.

Having been informed of the change to the thesis, the guy’s committee refused to accept the revised version and withheld his well earned Master’s degree.  He appealed this through numerous channels within UCSB, and was turned down every time. Finally, he attempted to make a First Amendment case out of it.  By this time the University had relented and had given the guy his degree, but it still refused to accept the thesis in the library.  So he sued, claiming that his free speech rights were infringed.

He lost.  But, at least he was able to embarrass the university by pointing out that it was not completely consistent about its application of professional standards of decorum.  It had previously approved a thesis that included the following:

To 1) the dip***ts who decided to put the P-chemists on the forth (sic) floor; 2) the inept facilities management monkey who raised the cooling water pressure and 3) the dumb ass who left his cooling water ON for a laser that was OFF for 2 years and subsequently flooded my lab, desk and my most important files: may your bloated, limb-less bodies wash to shore and be picked clean by seabirds and maggots….

We advise caution, my friend.  Save your criticism for later—not in your thesis.

The case is Brown v. Li. 308 F.3d 939 (9th Cir. 2002)

DAWG BONE: NOT A GOOD IDEA TO REFER TO THE DEAN OF THE SCHOOL (OR THE PRINCIPAL!) AS A DEGENERATE BEFORE YOU GET THAT DIPLOMA.  LET IT WAIT.

 Enjoy the weekend, friends!

Dawg Bones

Two Kinds of Immunity

There is immunity from SUIT; and then there is immunity from LIABILITY.  These are different things.

If you go to the Immunity Store to buy some immunity, (not available at Amazon or Walmart) you should ask for the immunity from SUIT. It’s probably more expensive, but it’s better.  Immunity from SUIT means they are not supposed to sue you, and if they do, the case will be promptly tossed out.  The court has no jurisdiction over the case, and the only thing it can do is dismiss it.

Immunity from LIABILITY means they can sue you, and you will have to go through all of the preliminary wrangling before the court decides that you have immunity from LIABILITY.  Then the case will be tossed out, but you will have spent some sleepless nights and probably a few thousand bucks.

Teachers who are acting within the scope of their employment are immune from LIABILITY most of the time. Thus when teachers are sued over accidents that happen in the classroom, the court will usually dismiss the case after the teacher’s lawyer has convinced the court that the teacher is entitled to immunity from LIABILITY.

This came up in a case involving an alleged injury to a student in Blum ISD. The plaintiff did not sue the district, but he sued two district employees.  The lawyer for the district employees filed a Plea to the Jurisdiction, arguing that the employees of the district were immune from SUIT, and thus the court lacked jurisdiction. The court said no—the district employees might be immune from LIABILITY, but not from SUIT. The court had jurisdiction.  The case continues.

There is a concurring opinion in this case that points out that the plaintiff claims that the injury occurred in the summer, and had nothing to do with the school or the status of the defendants as BISD employees.  So we shall see what happens as this case proceeds.  In the meantime, it provides a good lesson for school lawyers and all those lawyer wannabes out there.

The case is McPherson v. Wylie, decided by the Court of Appeals for Waco on December 14, 2016. We found it at 2017 WL 7325461.

DAWG BONE: WE MADE UP THAT PART ABOUT THE IMMUNITY STORE.  NO SUCH PLACE.

 File this one under:  LIABILITY

Tomorrow: don’t get too cheeky with your Master’s thesis….

Dawg Bones

Bulletin: Assaulting the principal might get a teacher fired!

We can learn four things about teacher termination cases from the Commissioner’s decision in Timmons v. Killeen ISD. 

1. The quality of the school’s internal investigation of an incident doesn’t matter much if the case is ultimately heard by an independent hearing examiner. Here, the teacher argued that the investigation was poorly done and even biased. The Commissioner blew that off:

The results of an investigation have no inherent weight. Just like every other piece of evidence, the results of an investigation, assuming they are properly admitted into evidence, are weighed by the independent hearing examiner.

2. The Commissioner is not going to determine how the case should have been decided.  He is going to determine if there is “substantial evidence” in the record to support the decision made by the school board.

3. The deadline for filing the Petition for Review does not end at the close of business. Here the Petition arrived after hours on the deadline day, (9:56p.m. by FAX), but the Commissioner ruled that it was timely.

4. Principals may be overworked and underpaid, but can take comfort in the fact that getting physically assaulted by a teacher might result in the teacher getting fired. No one disputed that basic proposition in this case.

Kudos to my long time law partner, Mark Goulet, for guiding the district through this one. The independent hearing examiner found good cause for the teacher’s termination; the board approved that recommendation; and the Commissioner has affirmed the decision.

The case of Timmons v. Killeen ISD was decided by Commissioner Morath on May 1, 2017.  Docket No. 019-R1-03-2017.

DAWG BONE: MEMO TO TEACHERS: DON’T BEAT UP THE PRINCIPAL.

File this one under: LABOR AND EMPLOYMENT

Tomorrow: When you go to the Immunity Store, be sure you know what you are getting….

Dawg Bones

It’s Toolbox Tuesday!! What about that last-day-of-school prank? Can we bar kids from the graduation ceremony?

In the Toolbox Training we offer a full day on ten “tools” available to school administrators when dealing with students with disabilities who engage in disruptive or violent behavior.  Since we are near the end of another year, and graduation is just around the corner, let’s talk about the inevitable “last day of school” prank pulled off by the senior class.  What leverage, if any, do you have?

It’s customary for schools to warn the seniors that certain types of misconduct may result in losing the privilege of “walking”—participating in the graduation ceremony.  We often refer to  participation in extracurricular activities as a privilege; not a right.  Certainly that statement applies to the graduation ceremony as well. But that “privilege/right” dichotomy may be legally accurate, but it’s professionally naïve.  When grandma has bought a bus ticket to come all the way from Tallahassee to see Bubba “walk” you had better have a good reason for not letting Bubba walk.

Can your rules be applied to the students with disabilities?  Of course they can.  One of the things we emphasize in the Toolbox is that all students—ALL students—are expected to comply with the rules set out in your Code of Conduct.  Of course the law requires you to comply with some specific procedures when you impose the more serious consequences.  Some of the consequences set out in your Code of Conduct—such as a long term assignment to DAEP—would be a “change of placement.” If you seek to do that with a student with a disability, you will need to have an ARD Committee meeting to conduct a manifestation determination.

But barring a student from the graduation ceremony is not a “change of placement.” It’s a loss of a privilege.  Students with disabilities are subject to the loss of privileges under the same conditions as non-disabled students.

However, you need to keep two things in mind.  First, state law mandates that your Code of Conduct must require you to consider the impact of a student’s disability before imposing a suspension on that student.  Specifically, the law requires you to consider if the student’s disability “substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct.” That requirement applies to suspensions and other more serious disciplinary penalties, but we think you would be wise to keep that in mind before barring a student from the graduation ceremony.

Second, ask yourself: does the student have a behavior plan in place? If so, what does it say? Does it have any bearing on your decision?

Here’s hoping all goes well for you on graduation night!

DAWG BONE:  THE CODE OF CONDUCT APPLIES TO ALL, BUT WILL BE ENFORCED CONSISTENT WITH FEDERAL AND STATE LAWS THAT PERTAIN TO STUDENTS WITH DISABILITIES.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Beating up the principal might get a teacher fired!

Dawg Bones

Can I be re-assigned from Principal to Assistant Principal?

Cynthia Jackson was the principal of an elementary school in Port Arthur ISD until the superintendent reassigned her to assistant principal at the high school.  Ms. Jackson challenged the reassignment in court, alleging that the superintendent and district had violated her rights to due process, and retaliated against her for the exercise of free speech.

The court tossed the case out.  Much of the legal analysis was based on the straightforward language in the contract that gave the superintendent authority to “assign and reassign.”  Moreover, there was no cut in pay.

As far as “due process” the court pointed out that Ms. Jackson had not been deprived of a “property” or “liberty” interest.  “Due Process” is afforded only when process is due.  Process is not due unless the government is taking away a person’s life, liberty or property.  Moving from principal to A.P. does not involve a loss of any of that. So much for that issue.

The free speech analysis is a bit more involved.  The court held that “a person does not engage in constitutionally protected speech when speaking with other individuals in the organization that employs her about matters concerning the duties of her employment.” Key Quote:

As the principal of an elementary school, providing [the superintendent] and her coworkers with her view about the strengths or weaknesses of the school’s programs and staff were matters that were encompassed within her duties as the school’s principal.  Moreover, Jackson failed to allege that she ever discussed these matters outside the circle of the District and its employees.

We take that to mean that the court was unwilling to grant constitutional protection to every gossipy conversation in the teacher’s lounge, or even to more serious conversations among co-workers about how things are going in the school.  So Ms. Jackson’s First Amendment claim also failed.

For the lawyers, this case is worth reading for the court’s discussion how a Plea to the Jurisdiction can be used.  The court was OK with a Plea to the Jurisdiction in this case, noting that “Texas courts have recognized that a governmental unit may use a plea to the jurisdiction to challenge the validity of the plaintiff’s claims.”

The case is Jackson v. Port Arthur ISD, decided by the Court of Appeals for the 9th District (Beaumont) on April 20, 2017.  We found it at 2017 WL 1425589.

DAWG BONE: THOSE CONTRACTS DO SAY “ASSIGN AND REASSIGN.” READ CAREFULLY.

File this one under: LABOR AND EMPLOYMENT

Tomorrow: It’s Toolbox Tuesday!! Let’s talk about that pre-graduation prank!

Dawg Bones

More Incorrect Test Answers….

Do you know that there is a bill making its way through our legislature that would require students to pass a civics test as a graduation requirement? The civics test would be based on the test that immigrants must pass to become a citizen. Sounds like a good idea to me.  The Texas Tribune just published a sample of that test—ten questions. I’m pleased to report that I passed!! Whew!

So that got me to thinking about some of the creative answers that kids have given to test questions in Social Studies.   For example:

Q. What people lived in the Po Valley?
A. Po’ people.

Q. What did Paul Revere say at the end of his famous ride?
A. “Whoa!!”

Q. How many wars were waged against Spain?
A. Six.

Q. Enumerate them:
A. 1, 2, 3, 4, 5, 6.

 DAWG BONE: JUST SEEMS RIGHT THAT A HIGH SCHOOL GRADUATE SHOULD KNOW AT LEAST AS MUCH AS A NEW CITIZEN.

File this one under: LEGISLATION 2017

Dawg Bones

What does “all” mean? Didn’t we settle this a long time ago?

In 1989, the 1st Circuit Court of Appeals told us that “all” means what it says. The context was a severely disabled child in New Hampshire, and whether or not he was eligible to receive special education services.  You might think it obvious that a child with severe and permanent disabilities was eligible. But the argument here was that the child was so low functioning that nothing that could be done for him came under the banner of “education.”  Certainly he needed medical care, love, and support….but he would not benefit from any educational services.

The 1st Circuit rejected that argument, citing the law’s simple mandate to provide a Free Appropriate Public Education to ALL children “regardless of the nature or the severity” of the disability.  That case is Timothy W. v. Rochester, N.H. School District, 875 F.2d 954 (1st Cir., cert. denied, 1989).

Now the issue has resurfaced in a school finance case. That’s right—a school finance case.  The plaintiff in the case is the Connecticut Coalition for Justice in Education Funding, Inc.  The plaintiff  asserts that Connecticut’s system of school finance is unconstitutional.  In September of 2016, the trial court issued a sweeping order in favor of the Coalition giving the state 180 days to develop a better plan. The case is on appeal to the state Supreme Court.

In its discussion of special education, the trial court says many things that I have heard people whisper quietly.  Here’s a sample:

*The state’s program of special education spending is irrational.

*Congress and the General Assembly have ordered school districts to bear immense financial burdens in the name of special education without giving them much help shouldering them.

*The cost of special education is staggering.

*The reason so much is spent is because someone has to take responsibility for saying that it shouldn’t be, and no one is willing to do it.

*Special education identification and intervention is unquestionably individualized, but that doesn’t mean it has to be chaotic.

The court’s opinion repeatedly puts the word education in bold font, by way of emphasizing that there are some kids who can’t benefit from anything a rational person would describe as education.  This is exactly the conclusion that the 1st Circuit rejected 28 years ago.

This is why the Department of Education was asked to weigh in on this issue.  In Letter to Wentzell, the Office of Special Education and Rehabilitative Services expressed its views on the Connecticut case:

Therefore, we are concerned with those portions of the [trial court’s opinion] that suggest that a school district need not provide programming or services to all IDEA-eligible children in all areas of need.

This one has a long way to go.  Furthermore, that OSERS letter came in the waning days of the Obama Administration. We don’t know if the Trump Department of Education will take the same view.

Stay tuned.  The Letter to Wentzell was issued on December 7, 2016 and can be found at 69 IDELR 79.  The trial court’s opinion in Connecticut Coalition for Justice in Education Funding, Inc. v. Rell was issued on September 7, 2016. It’s at 2016 WL 4922730.

DAWG BONE: IN ALL THE YEARS OF SCHOOL FINANCE LITIGATION IN TEXAS, I DON’T THINK THIS ARGUMENT HAS BEEN MADE.

 File this one under: SPECIAL EDUCATION

Dawg Bones

We got no teacher unions here

I get angry when I hear Texas politicians blaming teacher unions for things.  You’ve heard the drill.  Teacher unions are loaded with money and political power and they use that muscle to protect bad teachers.  That’s why our schools are so bad.  It’s been repeated so often on so many TV and radio talk shows that it’s become the accepted conventional wisdom.

But it’s poppycock.  At least here in Texas it’s poppycock.  There are states where teachers have powerful unions, but Texas does not happen to be one of them.  To be a “union” you have to have the authority to engage in collective bargaining.  That’s illegal for public employees here in Texas.   If you’ve got no collective bargaining, you’ve got no union. What you have is an association that seeks to make life better for its members.

I guarantee you that if Texas had the kind of politically powerful teacher unions that exist in other states, the Senate would never have passed the insulting bill that bars teachers from paying  organizational dues by payroll deduction. The Senate bill allows cops and firefighters to use payroll deduction—but not teachers.

Big bad teacher unions make for a convenient scapegoat.  And if you are a politician who has helped undermine public education by raising standards while reducing resources, you sure need a convenient scapegoat.

It’s poppycock.

DAWG BONE:  THERE IS ANOTHER MORE EARTHY WORD FOR “POPPYCOCK,” BUT THIS IS A FAMILY PUBLICATION

 File this one under: GOVERNANCE

Dawg Bones

It’s Toolbox Tuesday!! What’s this about providing “FAPE” after “expulsion”? How can that be?

We highlight The Toolbox on Tuesdays around here. The Toolbox is an all-day program for campus administrators and special education staff. It’s all about the ten “tools” that you can use to appropriately serve students with disabilities who may be seriously disruptive or even violent.

Some of those students will commit offenses that are listed in Chapter 37 as expellable. In fact, some of those offenses are “mandatory expellable” offenses. What does that mean for a student in your special education program?

Three key points:  First, there is no such thing as “expulsion” for such a student in the traditional sense of the word “expulsion.” That word typically denotes a cessation of services of any kind for a significant period of time.  Under federal law, states must make FAPE—Free Appropriate Public Education—available to all children from 3 to 21 “including children with disabilities who have been suspended or expelled from school, as provided for in Section 300.530(d).”  Since federal law overrides state law, this means that there is no “expulsion to the street.”  The student with a disability who commits a mandatory expellable offense must still be served. FAPE must be available.

Second, the ARD Committee is the group that decides exactly how that will happen.  Texas is fortunate in that we already have DAEPs and, in our larger counties, JJAEPs that can normally provide the services that “expelled” students need.  But decisions about exactly where and how a student will continue to receive services must be decided by the ARDC on a case-by-case basis.

Third, the student is entitled to services that “enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.”  Notice that this standard is not exactly the same as “FAPE.”

It’s close, but it’s not precisely the same standard.

These are things we talk about in the Toolbox training?  Interested?  Let me know!

DAWG BONE:  DON’T TAKE “MANDATORY EXPELLABLE” TOO SERIOUSLY.

 File this one under: SPECIAL EDUCATION DISCIPLINE

Dawg Bones

First major piece of legislation: Sanctuary Cities

Governor Abbott has signed into law SB 4, the first significant piece of legislation to emerge from the 2017 session—the so-called “Sanctuary Cities” bill.  This bill authorizes employees of “campus police departments” and “local entities” to inquire into a person’s citizenship status when making an arrest or a “lawful detention.”  Importantly, however, this will not affect the conduct of employees of school districts or open enrollment charter schools.  The term “campus police departments” is limited to higher education; and the term “local entity” does not include school districts.

Moreover, the bill includes a very specific exclusion of K-12 entities:

 This subchapter does not apply to a school district or open-enrollment charter school, including a peace officer employed or contracted by a district or charter school during the officer’s employment with the district or charter school or while the officer is performing the contract. This subchapter does not apply to the release of information contained in education records of an educational agency or institution, except in conformity with the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).  Texas Government Code 752.052(d).

Our immigration laws are enforced by the federal government.  SB 4 now empowers state and local officials to assist with this.  But it conspicuously leaves public schools out of the picture.  All students residing in Texas have a constitutional right to attend the public school, regardless of citizenship status or the legality of their entry into the country.  This was settled by the U.S. Supreme Court in Plyler v. Doe (1982).  In order to safeguard that right, it is important for public school employees to refrain from making inquiry into these matters.

SB 4 seems to recognize this.  This law does not empower or encourage school employees, including SROs, to assist in enforcing our immigration laws.  All employees should comply with school district policy on the matter.  Furthermore, if the school receives a request for records pertaining to a student, the release of those records can only occur in conformity with FERPA.

This fall I will be conducting my annual Back to School tour, which will feature a comprehensive review of new legislation.  No doubt we will be talking about this bill and its implications for public school educators.  Registration for the BTS  program is now open at www.legaldigestevents.com.

 DAWG BONE: SB 4 IS ALREADY BEING CHALLENGED IN COURT BEFORE IT GOES INTO EFFECT ON SEPTEMBER 1. STAY TUNED!

 File this one under: LEGISLATION: 2017