All posts by Jim Walsh

Dawg Bones

NSBA and COSA heading to SA—Mark Your Calendars!

The National School Boards Association will have its annual conference in San Antonio next year. Mark your calendar for April 7-10, 2018 when board members and superintendents from around the country will gather near the Riverwalk.

The lawyers meet just before the NSBA Conference. COSA (Council of School Attorneys) will meet in SA on April 5-7.  I recently attended the COSA conference in Denver and it was excellent. These conferences provide a great opportunity to learn what’s happening around the country.

And think of this: the men’s Final Four is in San Antonio next year also—March 31 to April 2. Come for the Final Four, and just stay!

DAWG BONE: RIVERWALK.  ALAMO.  MEXICAN FOOD. WHAT’S NOT TO LIKE?

Dawg Bones

Transfer student told not to come back. Legal problems?

J.G. got in trouble on the school bus.   The principal questioned J.G. and told him to write up his own explanation of what happened.  After considering the matter, the principal suspended J.G. for a few days.  Later in the year the school informed J.G.’s parents that he would not be allowed to enroll in the district the following year. J.G. did not live in the district—he was a transfer student.

The boy’s mother sued the district, alleging that it had (1) violated his right to due process, (2) deprived him of his right to an education, and (3) discriminated against him on the basis of race.   The school district filed a Motion to Dismiss all three claims, and succeeded on two out of three.  The court dismissed those first two claims, but kept the third claim alive.

As to due process, the court pointed out that it’s permissible for a principal to question a student without first notifying the parent.  It’s permissible to require the student to give a written explanation. None of that deprived the student, or the parent, or the process they were due.  In fact, the court noted, that the principal was simply providing the due process required by the Supreme Court case of Goss v. Lopez. 

As far as the right to an education, the court noted that J.G. could still go to school in the district where he resided. There is no “right” to transfer to another district. So that claim was denied.

However, the opportunity to transfer cannot be denied in a way that illegally discriminates.  The suit alleges that J.G., a Hispanic student, was denied re-enrollment based on the bus incident, whereas there was an Anglo student involved in the incident who was still allowed to transfer.  So that part of the case will continue. No doubt if the matters ends up in trial, the district will offer evidence to explain that the decision was not based on race, but rather on some other factor.  At this preliminary stage of the game, however, the court is required to accept as true the allegations in the complaint.

The case is Garcia v. Vega ISD. Judge Mary Lou Robinson of the Northern District of Texas ruled on the district’s Motion to Dismiss on January 27, 2017.    We found the opinion at 2017 WL 395126.

DAWG BONE:   THERE IS NO RIGHT TO TRANSFER, BUT THERE IS A RIGHT NOT TO BE DISCRIMINATED AGAINST ON THE BASIS OF RACE.

File this one under:  ADMISSION AND ATTENDANCE

Tomorrow: NSBA and COSA heading to Texas!

Dawg Bones

Denton offers teaching contract to a five-year old. What????

You read that right.  Denton ISD has offered a teaching contract to Brenden Flowers, a kindergarten student.  Brenden is to start work in 2033, assuming he gets his degree and teaching certificate by that time.

Brenden is a cute little guy, and this makes for a cute story.  It is obviously a way to encourage young people to think about becoming teachers. But still….let’s not let Dan Patrick find out that school districts are recruiting kindergarten kids.  He will use it as evidence to justify school choice.  Can’t you just hear it?

“These government schools are now so desperate that they are hiring kindergarten kids to teach!  We have to give parents more choices!!”

Here’s the story.

http://dfw.cbslocal.com/2017/04/12/denton-isd-teaching-contract-kindergartener/

DAWG BONE: IT’S A GREAT P.R. MOVE, BUT WE DOUBT THE CONTRACT WILL HOLD UP IN COURT

Tomorrow: transfer student told not to return next year. Lawsuit!

Dawg Bones

It’s Toolbox Tuesday!! We’ve got guidance from OCR about the use of restraint.

In the Toolbox Training we talk about the use of physical restraint, and how it should only be used in a genuine emergency.  Many of the readers of this blog have been trained on the use of restraint and are familiar with the protocols to be used.  To add to that, we now have a Dear Colleague Letter from the Office for Civil Rights about how the use of restraint may implicate  Section 504.

The DCL includes the usual admonitions to avoid any discriminatory treatment, but also makes the following key points:

1. The need to restrain a student not yet identified under IDEA or 504 may indicate a need to conduct an evaluation.   This is particularly true if restraint is done more than once.

2. Students who demonstrate behavioral challenges may have a disability even if they are performing well academically.

3. For students already identified under IDEA or 504, the use of restraints is an indicator that the current array of services are inadequate. Do something about it.

4. Section 504 does not prohibit the use of restraint. It prohibits the discriminatory use of restraint.

5. Use of restraint or seclusion may amount to a denial of FAPE. This is true even if it is just a single instance, if the event has a “traumatic impact on that student.”

6. Students who have experienced trauma in the past could be more impacted by restraint than others.

We discuss all of these issues in the Toolbox training.  The Toolbox is an all day program that covers a lot of ground, including 10 “tools” that administrators can use to comply with the law and serve students appropriately when they display challenging, disruptive or violent behavior.  Restraint is not one of the 10 tools, but it is something that has to be discussed in this context.

Whether you attend a Toolbox training or not, this DCL is worth your study.   The DCL was issued on December 28, 2016. We found it at 69 IDELR 80.

DAWG BONE: LET’S KEEP THOSE RESTRAINTS TO A MINIMUM.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Denton ISD hires a five-year old????

Dawg Bones

The impact of one educator….

I knew the memorial service would be crowded, so I got there 30 minutes early.  Not early enough. I had to park three blocks away, and the church was already full. So I stood against the wall. Waiting for the service to begin, I struck up a conversation with the man standing next to me.

I asked how he happened to know the deceased, and he told me that the man was his high school principal in the mid-70s.  Did he have a lot of contact with the principal?  He laughed.  “Well,” he said, “he paddled me once, and suspended me another time.”  And here you are at his memorial service, over 40 years later?  “Yes,” he said, with a smile. “Dr. Akins was a great man.”

Indeed he was, which is why the Wesley United Methodist Church in East Austin was overflowing.  How many people have a high school named for them while they still live?  Charles Akins was that kind of man.  Teacher.  Assistant principal. Principal.  Assistant Superintendent. Board member at ESC Region 13.

Charles Akins attended the all black L.C. Anderson High School in East Austin before the AISD integrated.  After college, he became a teacher and went to work in AISD.  When the district decided to close the black high school, it opened up a new high school in upscale, all white Northwest Austin, and bused black kids in from the Eastside.  They kept the name—L.C. Anderson—and named Charles Akins as the first principal.  In later years he recounted his memories of greeting both the black and white kids as they got off the buses.  Fights were common.

The district placed a lot of confidence in Charles to put him in that position, and he demonstrated through his service that the confidence was well placed. He succeeded at Anderson High School, and at every position he held in the district.

Charles was one of those people who seemed to overflow with warmth. He remembered names, and took interest in everyone he met.  That man who stood beside me at the service was not the only former student from long ago who took the time to honor this man.  At the memorial, the principal of Akins High School kept her composure until she noted that the school would soon have its first graduation without Dr. Akins.

I did not know him well, but knew him well enough to know that Charles Akins was a quiet hero. We are fortunate that we have many of them serving in our public schools.  The life of  Charles Akins is a reminder of the enormous positive impact a single educator can have.

DAWG BONE: CHARLES AKINS—MAY HE REST IN PEACE

Tomorrow: Toolbox Tuesday, and some guidance from OCR.

Dawg Bones

Happy San Jacinto Day!

Wikipedia says that the Battle of San Jacinto lasted only 18 minutes, but “the killing lasted for hours.”  Yikes.

Anyway, we wish all of you a Happy San Jacinto Day!  If you are wondering how you should honor the Texas heroes who secured our independence, let me suggest this: take an 18-minute nap.

They fought so that we can nap. Be grateful.

DAWG BONE: SAM HOUSTON IS SMILING DOWN UPON US.

Enjoy the weekend!

Dawg Bones

Could we just abolish 7th grade?

At least once a year I like to promote the brilliant idea my wife came up with many years ago.  We should abolish 7th grade and replace it with a full year of instruction and practice on social skills.

Does anyone learn anything of an academic nature in 7th grade that’s really important?  By 7th grade the basics are in place. They know how to read, write and cipher.  The harder stuff (quadratic equations, calculus, quantum physics, Shakespeare) lies ahead.  Nothing really important happens in 7th grade.  Most of what is allegedly “learned” during that year will be re-taught and re-learned later.

That’s largely because 7th graders don’t care about academic learning. They only care about the peer group, their social status and how they fit in. Why don’t we recognize that and take advantage of it?  Let’s spend an entire year on things like:

1. How to shake hands with an adult.

2. How to get someone’s attention without being rude.

3. How to call someone on the telephone that you don’t know.

4. How to meet a new person.

5. The importance of eye contact.

6. Table etiquette.

7. Digital etiquette.

8. How to disagree with someone without being disagreeable about it.

9. How to handle awkward moments.

10. What real friendship looks like.

11. The difference between apologizing vs. making amends.

12. Resilience when things go wrong or are hard.

13. How to respond—not react—when you are angry or offended.

The list could go on.   Anyway….I think the idea has merit. What do you think?

DAWG BONE: DOWN WITH 7TH GRADE!!!

Tomorrow: 18 minutes that changed the world….

Dawg Bones

Is discrimination based on sexual orientation the same as discrimination based on sex?

Is it illegal for an employer to discriminate against a person because he is gay or she is lesbian?  After the Supreme Court’s decision in the same-sex marriage case, you would think that the answer would be an obvious “yes.” But it’s not that simple. In fact, until very recently almost all of the Circuit Courts that have considered the issue have held that discrimination based on sexual orientation does not violate Title VII, which is part of the 1964 Civil Rights Act. Title VII prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin.”  So if Mr. Smith is fired because he is gay, has he been discriminated on the basis of “sex”?

This was the issue before the 7th Circuit, sitting en banc in a recent case.  Kimberly Hively alleged in her suit that she was passed over for promotion, and later terminated by Ivy Tech Community College for the sole reason that she was openly lesbian.  By a vote of 8-3, the court held that discrimination based on sexual orientation is a form of sex discrimination.   The opinions of the judges, both majority and dissent, make for interesting reading.

The majority opinion is written by Judge Diane Wood, who I knew when she and I were both undergrads at UT Austin.  She points out in her opinion the weirdness of the current legal landscape whereby a gay person “can be married on Saturday and then fired on Monday for just that act.”  Citing the same-sex marriage case and other Supreme Court cases on analogous topics, the majority concludes that discrimination based on sexual orientation is a subset of sex discrimination and, therefore, equally illegal.

Judge Posner’s erudite concurring opinion overtly embraces the idea that judges can, and should, re-interpret statutes as the culture changes.  He cites his own life experience:

It is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII. I had graduated from law school two years before the law was enacted.  Had I been asked then whether I had ever met a male homosexual, I would have answered: probably not; had I been asked whether I had ever met a lesbian I would have answered “only in the pages of A la recherche du temps perdu.”  [Remembrance of Things Past by Marcel Proust].  Homosexuality was almost invisible in the 1960s.  It became visible in the 1980s as a consequence of the AIDS epidemic; today it is regarded by a large swathe of the American population as normal.

The three dissenting judges were equally eloquent in urging the court not to do for Congress what Congress should do for itself:

It’s understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act.  Legislative change is arduous and can be slow to come. But we’re not authorized to amend Title VII by interpretation. The ordinary, reasonable, and fair meaning of sex discrimination as that term is used in Title VII does not include discrimination based on sexual orientation, a wholly different kind of discrimination.

This case may end up before the Supreme Court. If it gets there, it will have implications not only for gay and lesbian employees, but also transgender employees and students.

The case is Hively v. Ivy Tech Community College, decided by the 7th Circuit on April 4, 2017.  We found it at 2017 WL 1230393.

DAWG BONE: AS THE CULTURE CHANGES, THE LAW FOLLOWS….EVENTUALLY.

File this one under: LABOR AND EMPLOYMENT

Tomorrow: a radical idea for your consideration….

Dawg Bones

It’s Toolbox Tuesday!! Let’s talk about a “shoulda known” kid!

Students who are identified as eligible for your special education program are entitled to some special protections when it comes to disciplinary action.  But there are also some kids who are not in your special education program but are also entitled to those protections. I call them the “shoulda known” kids.

D.D. is one of those kids.  In late September, 2014, D.D.’s guardian met with the principal to discuss some recent “behavioral incidents” involving the 7th grade girl.  In that meeting, the guardian “verbally requested an evaluation for D.D. to determine if he was eligible for special education services under the IDEA.”

That verbal request instantly moved D.D. from the “general education” category to “shoulda known” kid category.  It also triggered the district’s Child Find obligation.

The district did not begin the evaluation process. Instead, it held a “Teacher Assistance Team” meeting and developed a plan to address the girl’s behaviors.  The district did this to comply with the state’s RTI standards.  Apparently, the plan didn’t work very well.  Problems continued, culminating in the girl’s possession of a knife at school in early February. The district suspended her for the rest of the school year, with no educational services provided.

The federal district court made two important rulings based on this fact situation. First, the district violated Child Find requirements, and its reliance on RTI was no excuse:

…while the RTI process can occur before, or in conjunction with an initial evaluation under the IDEA, if a parent makes a request for an initial evaluation of her child for special education services, the RTI process cannot be used to delay, in any way, that evaluation.

Second, the district violated IDEA by suspending the student without providing the procedural protections that special education students are entitled to.  The district argued that it did not have any information indicating that the girl had a qualifying disability. All it had was the guardian’s request for an evaluation.  As the court pointed out, that was enough:

…actual knowledge of a disability is not required under [the relevant section of  IDEA]; the section is satisfied so long as an evaluation of the child has been requested.

D.D. should have been receiving the protections of the IDEA during her suspension.

Thus the district learns a costly lesson.

This is the type of thing we talk about in the Toolbox Training. Our goal is to help you avoid this kind of mistake when dealing with behavioral issues and students with disabilities. Or students who fall into the “shoulda known” category.

This case is Artichoker v. Todd County School District, decided by the federal court for South Dakota on December 29, 2016.   I found it at 69 IDELR 58.

DAWG BONE: WHEN THE PARENT REQUESTS AN EVALUATION, THE KID IS INSTANTLY A “SHOULDA KNOWN” KID.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: is discrimination against gays and lesbians a form of sex discrimination?

Dawg Bones

Can you send a bus to your neighboring district to pick up transfer kids?

The district attorney in Coryell County has asked for Attorney General Paxton’s opinion. The issue is whether or not a district can send its buses into a neighboring district to pick up transfer students if there is no interlocal contract in place.  The DA cites T.E.C. 34.007, which authorizes school boards to operate a transportation system outside of its borders “if the…school district enters into an interlocal contract as provided by Chapter 791, Government Code.”

Apparently, Jonesboro ISD is sending its buses into Gatesville ISD territory and does not have an interlocal contract in place.

We will keep an eye out for Mr. Paxton’s response, as it will have implications for any district that accepts transfer students.

Tomorrow is Toolbox Tuesday—with a case involving a “shoulda known” kid.