All posts by Jim Walsh

Dawg Bones

Your school board meetings: more like the state legislature? Or a football game?

This being Good Friday, I thought it would be a good time to revisit the issue of prayer at school board meetings.  Fortunately, we have a brand new 5th Circuit decision on the issue.

Background: two circuits (the 3rd and the 6th) have struck down prayer at school board meetings.  However, both of those cases pre-dated the Supreme Court’s decision in Town of Greece v. Galloway.  In that case SCOTUS considered the constitutionality of prayer at a city council meeting.  The Court held that the “legislative prayer” exception applied.  Therefore, just as ceremonial prayer is acceptable in Congress and in state legislatures, it is acceptable at a city council meeting.

That still left school board meetings in legal limbo. But not anymore, thanks to American Humanist Association v. Birdville ISD.

Since 1997 Birdville has opened its board meetings with presentations from two students.  The practice has been for the first student to lead the Pledge of Allegiance and the Texas pledge, while the second student delivers a statement, which might include a prayer.  That second student is given only one minute for his or her remarks. School officials do not direct the student on what to say, except to point out that the remarks must be relevant to a school board meeting and not obscene or inappropriate.

The American Humanist Association (AHA) alleged that these one-minute statements usually involve a prayer, and that those prayers are often overtly Christian, using phrases such as “in the name of Jesus.”  Moreover, the AHA alleged that board members have sometimes asked the audience to “stand for the prayer” or “bow your heads.”

The district tweaked the process in three ways in 2015, apparently in response to concerns expressed by the AHA. First, the district began referring to this one-minute presentation as a “student expression” rather than an “invocation.”  This reflected the fact that not all students used their time to deliver a prayer.  Some read a poem, or a secular reading.  Second, the district started providing a disclaimer, making it clear that the words spoken were the student’s—not the school’s.  Third, the district began selecting students on a random, rotational basis among student leaders who had volunteered, rather than having students selected on the basis of merit.

None of those changes satisfied the AHA.  The organization continued to assert that this was a thinly disguised scheme to allow prayer at the school board meeting.  The AHA and a former student from Birdville sued in federal district court, alleging that the district’s practices were unconstitutional.  The suit named the district as a defendant, along with all seven school board members who were sued in their individual capacity.

The federal district court granted a Motion for Summary Judgment in favor of BISD.  Now, the 5th Circuit has affirmed that decision. With the ruling that the district has not violated the Constitution, the board members are also relieved of liability concerns.

In its analysis, the court noted that several prior court cases have struck down “school prayer” at various school activities, such as football games and graduations.  On the other hand, there are also cases that allow prayer in the context of legislative activities at the federal or state level. So the court framed the issue this way:

The key question, then, is whether this case is essentially more a legislative-prayer case or a school-prayer matter.  Like Galloway, this dispute is about the constitutionality of permitting religious invocations at the opening, ceremonial phase of a local deliberative body’s public meetings. But like Santa Fe, this case is about school district sanctioned invocations delivered by students on district property.

The court concluded that “a school board is more like a legislature than a school classroom or event.” Thus the “legislative prayer” cases controlled the outcome. The district’s practices fit well within that framework.   The court cited Town of Greece v. Galloway as the primary basis for its ruling.

The district had a back-up argument prepared for the court—that even if the one-minute was used for the delivery of a sectarian prayer, it would be the student’s speech, not the school’s.  But by relying on the legislative prayer exception, the court did not reach that issue.

The case of American Humanist Association v. Birdville ISD was decided by the 5th  Circuit on March 20, 2017.  I’m proud to report that attorneys Craig Wood and Katie Payne from our firm’s San Antonio office represented the district in this case.

DAWG BONE: BIRDVILLE TO 5TH CIRCUIT: “LET US PRAY.”  5TH CIRCUIT TO BIRDVILLE: “OK.”

File this one under: RELIGION

Have a good weekend, Readers! See you next week.

Dawg Bones

Bus abruptly stops. Kid smacks into the windshield. Liability?

School districts in Texas are not liable for most of the injuries that students suffer while attending school.  We have immunity provisions in place that protect school districts from liability when kids get hurt, even when the injury is due to the negligence of a school employee, or of another student.  But there is an exception when it comes to transportation.

School districts are liable for injuries that result from the negligent use or operation of a motor vehicle by a school employee.  So T.P., a student in Arlington, probably figured that she had a pretty good case when she was thrown into the windshield of the bus hard enough to crack the windshield.  Ouch!  However, the school’s attorneys argued that the lawsuit did not properly allege that the girl was injured due to the negligent operation of the bus, but rather, due to the negligent supervision of the students. After all, she would not have been tossed into the windshield if she had not been standing in the aisle. Doesn’t that indicate that the real problem was negligent supervision?  Thus the school filed a Motion to Dismiss.

It was a good argument by the school’s lawyers.  There are numerous cases that make it clear that the district is not liable for negligent supervision—even if it happens on the bus.   Thus just because an injury occurred ON the bus does not mean that it was CAUSED BY the negligent use or operation of the bus.

The argument was a good one, but not good enough to persuade the court to toss out the case. The court held that the pleadings were sufficient to allege that the bus driver was careless in operating the bus, thus requiring an abrupt stop to prevent a collision.  That was enough to keep the case alive.

Some of you are probably wondering: but what about the fact that the girl was standing in the aisle? Doesn’t the student bear some responsibility?  The court said that it would be perfectly appropriate for the jury to consider that as a factor pointing toward “contributory negligence.” But that will come up later.  It was not reason enough to toss the case out.

Motion to Dismiss denied. Let the depositions begin!

The case of Arlington ISD v. T.P.  was decided by the Court of Appeals for the Second District of Texas, Fort Worth, on February 9, 2017.  We found it at 2017 WL 526311.

DAWG BONE: THE DISTRICT IS LIABLE FOR NEGLIGENT OPERATION OF THE BUS, BUT NOT NEGLIGENT SUPERVISION OF THE KIDS ON THE BUS.

File this one under: LIABILITY

Tomorrow: Can you pray at school board meetings?

Dawg Bones

Cyberbullying bill deserves your review.

SB 179, if enacted, will require major changes in your school’s response to bullying.  Here is a quick list of some of the major features of this lengthy and important piece of legislation:

1. It makes it clear that “a single significant act” can be “bullying.”

2. It defines bullying to include behavior that causes a student “to experience substantial negative mental health effects.”

3. It defines “cyberbullying” to include off-campus conduct in certain instances.

4. Requires notice to the parent of a bullying incident “not later than the next school day.”

5. Requires procedures for handling anonymous reports of bullying.

6. Calls for DAEP or expulsion for students who engage in bullying that encourages a minor to commit or attempt to commit suicide, incites violence against a minor through group bullying, or releases or threatens to release “intimate visual material” of a minor.

7. Requires reports to law enforcement relating to assault or harassment.

8. Requires counselors to serve as an “impartial mediator for interpersonal conflicts” involving bullying or cyberbullying.

9. Allows for the issuance of a subpoena prior to filing a suit to investigate “an injury to or death of a minor.”

10. Imposes liability for engaging in “actionable bullying”—directing “bullying communication” toward a person younger than 18.

11. Includes the parents of a student who has engaged in “actionable bullying” as potential defendants in a suit seeking civil damages.

12. Makes it a criminal offense to “intentionally and with malice” direct communication to a minor which is “harassing, extreme and outrageous” and which causes the suicide of the minor, or an attempted suicide that results in serious bodily injury; or doing so in concert with two or more other people.

13. Makes it a criminal offense to “intentionally and with malice” direct communication toward a person younger than 18 that threatens to make available to a third party “intimate visual material” of the child, and which causes the suicide of the child or an attempted suicide that results in serious bodily injury.

This one is called David’s Law. Keep an eye on it.

DAWG BONE: WE CONTINUE TO LOOK FOR WAYS TO REDUCE OR ELIMINATE BULLYING.

File this one under: LEGISLATION 2017

Tomorrow: Tossed into the windshield—who is liable?

Dawg Bones

Picky, Picky, Picky

It’s Toolbox Tuesday!!  What better time to talk about how to measure the blade of a knife!

This came up in a case from Pennsylvania after a charter school principal ordered the removal of a student to an alternative setting based on “special circumstances.”  Specifically, the kid had possession of a knife at school.

The principal declared the knife to be a “dangerous weapon” under federal law, thus enabling him to pull Tool #5 out of the Toolbox.  Tool #5 allows for an immediate removal of up to 45 school days, regardless of whether the behavior is a manifestation of disability or not.

But was it a “dangerous” weapon? The parents argued that it was not. The statute tells us that a knife with a blade of less than 2.5 inches is not “dangerous.”   So this case turned on the length of the blade.

That should be pretty simple, right?  You get the knife and a ruler and you lay them side by side.  In this case, the blade measured exactly 2.5 inches.  But that’s if you measure the entire length of the blade, from tip to handle.  The parents argued that you should not include the part of the blade closest to the handle. That part (which I have now learned is called “the tang”) was not capable of cutting anything but soft butter.  If you measured it that way, the blade was 2.25 inches.

What’s a hearing officer to do?  Order both sides to file memos spelling out their positions and citing authority. And believe it or not, both sides found some legal precedent that arguably supported its position.  But the hearing officer thought that the school had the better argument.  The ruling was that a knife blade should be measured from tip to handle, including the parts that actually cut, and the parts that do not.

Interesting stuff, huh?  This is the type of thing we talk about in the all day Toolbox Training. Let me know if you are interested.

The case of Propel Charter Schools was decided by the hearing officer on November 4, 2016. We found it at Special Ed Connection, 116 LRP 48618.

DAWG BONE: YOU MEASURE A KNIFE BLADE FROM TIP TO HANDLE.  THIS MIGHT COME UP AT THANKSGIVING….YOU NEVER KNOW.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: more on SB 179—the bullying/cyberbullying/bullycide bill.

Dawg Bones

Do we have a new standard for FAPE?

As you know by now, the Supreme Court has decided a case that clarifies the meaning of the term “free appropriate public education”—FAPE.  It was a unanimous decision, written by the Chief Justice.  Many have proclaimed that the Court has set a new, higher standard that schools will have to satisfy.  In certain parts of the country, that’s true. But not here. Let me explain.

The original FAPE decision was the Rowley case decided 35 years ago.  In that case SCOTUS held that Amy Rowley was not entitled to the best possible education, but only one that was “reasonably calculated” to enable her to receive “some educational benefit.”

That’s a very vague standard, and courts have struggled with it ever since. Different Circuit Courts have adopted different standards, leading to inconsistency across the country. That’s why the SCOTUS decided to take up a case from Colorado involving a student with autism named Endrew F.

Amy Rowley and Endrew F. are very different kinds of students.  Amy was hearing impaired, very bright, and served in the general education classroom. She was expected to achieve at grade level, and she did. In fact, she was in the upper half of her class.  The Supreme Court noted that Amy was moving along from grade to grade, right on time. Therefore, the Court reasoned, she was receiving “some educational benefit.”   Importantly, the Court limited its ruling to the specific facts of the case before it.  It left to another day a decision about what “some educational benefit” means for kids who are not served in the general education classroom.

That would be Endrew.  Endrew is not on grade level and likely never will be.   What does “some educational benefit” mean for a student like Endrew?  The 10th Circuit, relying on a prior opinion written by Judge Neil Gorsuch, said that FAPE required a level of benefit that was “merely more than de minimis.”  That means just a tad more than an insignificant amount. That’s a pretty low bar.

In fact, it is too low according to the Supreme Court.  The Court said that FAPE requires a level of services that are “reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.”

So the Supreme Court has rejected the 10th Circuit’s view of FAPE for the lower functioning student, but not the 5th Circuit’s.  The 5th Circuit never has adopted a “merely more than de minimis” standard. Instead, we have the case of Cypress Fairbanks ISD v. Michael F., which establishes a four-part test for FAPE.  Our courts and hearing officers have applied that test since 1997 when Michael F. was decided. The 5th Circuit said that an IEP must 1) be individualized on the basis of the student’s assessment and performance; 2) be administered in the least restrictive environment; 3) include services that are provided in a coordinated and collaborative manner by the key stakeholders; and 4) produce positive academic and non-academic benefits.

The bottom line on the Endrew case for Texas educators is that it is consistent with the standard we have been using since 1997.   In particular the first part of the 5th Circuit’s test (“individualized on the basis of assessment and performance”) is consistent with the Supreme Court’s language (“…make progress appropriate in light of the child’s circumstances”).   ARD Committees should continue to focus on the four-part test, asking themselves: in light of this child’s circumstances, including the data we have regarding the student’s assessment and performance, is this IEP likely to enable the student to make an appropriate amount of progress?

The case of Endrew F. v. Douglas County School District RE-1 was decided by the U.S. Supreme Court on March 22, 2017.

DAWG BONE: ARD COMMITTEES SHOULD BE ASKING THEMSELVES: IS THIS CHILD MORE LIKE AMY OR ENDREW?

File this one under: SPECIAL EDUCATION

Tomorrow: nitpicking over the length of the blade on a knife.

Dawg Bones

Cyberbullying and “bullycide” addressed in SB 179

S.B. 179 is a sweeping piece of legislation addressing cyberbullying and related issues.  This includes what has now come to be known as “bullycide”—situations in which students commit suicide after a pervasive campaign of bullying.

All educators should pay attention to this one.  If passed, this bill would make it clear that the school district has the authority to deal with “cyberbullying” that occurs entirely off campus if it “interferes with a student’s educational opportunities; or substantially disrupts the orderly operation of a classroom, school, or school-sponsored or school-related activity.”

The bill defines “bullying communication” to include expression that “urges or incites the recipient to commit or attempt to commit suicide.”  It imposes liability for any person who engages in “actionable bullying” aimed at a person younger than 18.  It also imposes liability on the parent of a child who engages in actionable bullying, even if the parent knew nothing about it.

This is a lengthy, sweeping bill addressing many sensitive issues. We will write more about it next week.  For now—go to www.capitol.state.tx.us and take a look at SB 179.

DAWG BONE: LEGISLATURE TACKLING SOME TOUGH ISSUES

File this one under: LEGISLATION 2017

See you next week!

Dawg Bones

Keep an eye on HB 218….

House Bill 218 is about improper relationships between educators and students. This is one that educators should keep an eye on.  Legislators are very concerned about the increase in reported instances of educator misconduct and we are almost certain to get new legislation on this topic, but this bill may take things too far.

Section 5 of the bill would require a person who applies for a job as an educator to file an affidavit “disclosing whether the applicant has ever been charged with, accused of, adjudicated for, or convicted of having an inappropriate relationship with a minor.”

Really?  If anyone, anywhere, anytime, with or without justification, accuses me of an improper relationship I must disclose this to a prospective new employer? What school district is going to hire that candidate?  If enacted into law as written, this would effectively end the career of any educator who is accused of wrongdoing, even when there is no truth to the accusation.

SB 7 is the companion to this bill in the Senate and it has already been passed. It includes a number of provisions designed to tighten up on teacher misconduct, but does not contain this provision.  If the House passes this one, the two bodies will have to reconcile the two.  So stay tuned.

DAWG BONE: STAY ALERT!

File this one under: LEGISLATION 2017

Tomorrow: another bill to watch for… cyberbullying and “bullycide.”

Dawg Bones

Freedom from Religion Foundation wins $1.00 in lawsuit

People sometimes wonder what advocacy organizations get when they win a lawsuit.  The recent case of Freedom from Religion Foundation v. Concord Community Schools provides a good example.  The FFRF won its case.  It obtained an order from the judge that declared the school’s past Christmas programs to be unconstitutional.  They judge did not grant the permanent injunction that FFRF sought. But the Foundation did recover damages—all of $1.00.  The court’s order says nothing about the recovery of attorneys’ fees, but I expect that the court will award fees to the FFRF due to their success in the case.

FFRF, like other advocacy organizations, pursues litigation not to recover damages, but to make a point.  In this case, the point made is that governmental entities cannot endorse religion.  The court concluded that the “Christmas Spectacular” programs that the high school produced were unconstitutional. Here’s the takeaway quote:

As the Court has previously emphasized, the portrayal of a living nativity scene in and of itself does not render the performance unconstitutional.  But the manner in which the living nativity scene was presented and its context within the show combined to create an impermissible message of endorsement.

The case was decided on March 6, 2017 by Judge Jon Deguilio of the Northern District of Indiana.  We found it at 2017 WL 879848.

I wrote up this case in more detail on October 31, 2016.  If you want a copy of that entry from the blog, just send me an email. I’d be happy to send it to you.

DAWG BONE: GOVERNMENT CANNOT “ENDORSE” RELIGION. 

File this one under: RELIGION

Tomorrow: HB 218 deserves your attention….

Dawg Bones

It’s Toolbox Tuesday!! Which “stay put” rule do we apply?

Here’s an interesting hypothetical that could be analyzed via the Toolbox.  A student is in the process of being evaluated for possible special education eligibility.   While that process is going on, the student brings a dangerous weapon to school.  An ARDC meeting is called, even though the student is not yet eligible for special education.  The ARDC concludes that the DAEP would be an appropriate placement for the student. But the parent disagrees with that and asks for a due process hearing. In the hearing request, the parent alleges that the DAEP placement is wrong, and that the behavior of the student is a manifestation of disability. But he also claims that the student should have been made eligible for special education at least one year ago. So you have a hearing that will address disciplinary issues, but also “child find” and the provision of FAPE.

Which “stay put” rule do we use?

In the Toolbox Training we emphasize that there are two “stay puts.”  One of them deals with disputes over placement, child find, the provision of services and other such things.  In those cases you use the traditional “stay put” and so the student stays in the current placement.  The other “stay put” deals with appeals of disciplinary decisions.  In those instances, the student stays in the IAES (Interim Alternative Educational Setting) chosen by the IEP Team (ARDC).  So what do you do when the due process hearing involves both types of issues?

I think Tool #5 provides the answer here.  The Toolbox involves ten “tools” that school officials can use to carry out their legal responsibilities. Tool #5 is a “special circumstance removal” and it’s sort of a trump card.  If the student brings a dangerous weapon to school, the principal can use Tool #5 to remove the student to an IAES for up to 45 school days.  This can be done even if the student’s behavior is a manifestation of disability, as long as the ARDC has concluded that the setting is appropriate for the student.  So I think your hearing officer would likely conclude that the student “stays put” in the IAES—in this case, that’s the DAEP.

Interested in learning more?  I do the Toolbox Training at school districts and ESCs and would love to come your way. So let me know.

DAWG BONE: YES, THERE ARE TWO STAY PUT RULES!

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: you win your lawsuit and recover $1.00?  Really???

Dawg Bones

Play Ball!!

I expect to be at Minute Maid Park tonight, watching the Houston Astros open their 2017 campaign.  Two years ago, Sports Illustrated featured the Astros on its cover, with the prediction that the Houston Nine would win the World Series in 2017.   Maybe so.  After all, if the Cubs can do it, anything is possible.

But win or lose, the Astros will be my guys.  My family moved to Houston in the summer of 1966, the second year of the Astrodome. I was there on our first night in Houston, and have remained loyal ever since.

It’s important to be loyal to your team.  I have no patience with those frontrunners who glom on to whatever team is winning.  This shows a lack of character, and an unwillingness to deal with life’s inevitable ups and downs.

For today, let me just offer a reminder to you educators of how baseball—of all the sports—is the most like LIFE, and the best metaphor for your work in public education.  Two reasons.

First, they play baseball every day.  It’s not like football where you practice for a week and then perform once.  No—you have to show up, suit up and perform to the best of your ability every day.  There are days you don’t feel good. There are days you lack enthusiasm.  But baseball players show up, suit up and play--just like teachers, assistant principal, and superintendents.

Second, baseball is the only game in which the defense controls the ball.  The same is true in LIFE, and in school operations.  You don’t control the action.  Instead, you have to be prepared, alert, ready to respond to situations as they arise.

I could go on and on with this topic, but will leave it at that.  Here’s hoping you and your teammates in the school have a winning season.  Here’s hoping you work together to navigate your way around the bases this year, arriving home, with the umpire calling you “SAFE!”

DAWG BONE: GOD IS A BASEBALL FAN. WE KNOW THIS BECAUSE THE FIRST WORDS IN THE BIBLE ARE “IN THE BIG INNING, GOD CREATED THE HEAVENS AND THE EARTH.” COINCIDENCE?  I THINK NOT!

Tomorrow: Toolbox Tuesday!!