All posts by Jim Walsh

Dawg Bones

Bond money to buy band uniforms? Who knew???

Mr. Strother complained that the Sweeny ISD was spending bond proceeds improperly.  Some of the bond money was used to buy band uniforms.  Is it OK to use bond money to dress out the band?

Apparently it is.  The auditor for Sweeny ISD said it was OK. The lawyer for the district said it was kosher.  And now Commissioner Morath has given his approval.

The statute says that bond money can be used for a variety of purposes, including the “equipment of school buildings in the district.”  Relying in part on an Attorney General’s Opinion from 1940 (A.G. Op. O-2547) the Commish tells us:

‘Equipment of a building’ is given a broad definition that includes items that are not normally attached to a building such as desks. Applying this definition to the present case, it would seem that band uniforms are equipment.  Band uniforms are intended for use in the enjoyment of a gym or stadium. Like most desks, band uniforms are not attached to a building, but they are often stored in a building.

Well, of course they are stored in a building. You wouldn’t want to leave the band uniforms out in the rain!

I’m pleased to let you know that Haley Turner of our law firm was the attorney for the district who persuaded the Commissioner that the district had done no wrong.  Haley tells me this practice of using bond proceeds for things like uniforms has been going on for some time but this is the first time we have had a specific decision approving of the practice. Nice work, Haley!

The case is Strother v. Sweeny ISD, decided by the Commissioner on November 29, 2016.  It’s Docket No. 017-R10-03-2016.

DAWG BONE: AND DON’T LEAVE THE UNIFORMS IN A VAN EITHER. KEEP THEM IN A BUILDING!

 File this one under: GOVERNANCE

See you next week!

Dawg Bones

Board Presidents—take note!!

The 5th Circuit has held that the presiding officer may be held liable for improperly shutting down a speaker during “public comment.” This case has important implications for those who serve as presidents of school boards.

What happened: Mr. Heaney was three minutes into his allotted five minutes of public comment before the Jefferson Parish council when Mr. Roberts, the presiding officer, interrupted him and called on the Parish’s attorney.  Mr. Heaney had been questioning the legality of certain actions by the council and its members.  The attorney expressed her opinion that nothing illegal had occurred.  When she finished speaking, Mr. Heaney continued, intending to use his remaining two minutes.  But when it became clear that Mr. Heaney was challenging the legal opinion just offered, the presiding officer jumped in:

Roberts: Let me, we’ve had this conversation before, ok?

 Heaney: Are you trying to stop me from speaking?

Roberts: Well you yielded and I do have the floor….so….I’m not going to turn this into a circus, ok? If you don’t believe what Ms. Foshee’s comments were—

 Heaney: I—

Roberts: Let me finish.  Last I checked, Ms. Foshee had a law degree hanging on the wall in her office. If you’re challenging whether or not what she’s saying to be accurate or not, you can go right to the elevator downstairs. The Clerk of Court’s office is there, and you’re welcome to file suit.  This is not the forum for you to challenge the opinion of the parish attorney, ok?

 Heaney:  Now if I can be able to speak—

Roberts: No, let me finish. Let me finish. Once again, I’m going to ask you, are you an attorney?

 Heaney: I don’t have to be an attorney to read and comprehend a decision—

Roberts: But I’m not going to sit here and have you berate the parish attorney.

 Heaney: I have a decision. I have a decision by HUD that contradicts what Ms. Foshee says—

Roberts: Sir, ok.  Your time’s up and I’m going to ask that you be removed because you’re being hostile so if you would please exit.

 Heaney: I’m not being hostile.

Roberts: If you’ve got a problem with that, you can go downstairs…..This is the third time that you’ve tried to take issue with something….

 Heaney: You’re trying to stop me from presenting facts that contradict Ms. Foshee.  Your’re taking my time, and you’re violating parish ordinance.

Roberts: If you’d please remove the gentleman.

 At which point the cop took Mr. Heaney out of the room.  Robert’s Rules of Order, indeed!

Mr. Heaney sued Mr. Roberts, alleging that the presiding officer deprived him of his First Amendment right of Free Speech.  Mr. Roberts filed a Motion to Dismiss the case, based on his qualified immunity.  As a government official, Mr. Roberts is entitled to qualified immunity unless his actions violated legal standards that were “clearly established” at the time.

The legal standard here is the right to be free from viewpoint discrimination when participating in a “limited public forum.”  The public comment section of a governmental meeting is a good example of a limited public forum.  The 5th Circuit noted that “It is beyond debate that the law prohibits viewpoint discrimination in a limited public forum.” In other words, this is “clearly established.”

If Mr. Roberts had simply tolerated Mr. Heaney’s remarks for another two minutes he could have then shut him down without any legal complications.  Likewise, if Mr. Heaney had veered far off topic—after all, it’s a “limited” public forum.  But as the 5th Circuit notes in its decision, “Heaney was speaking on an approved topic and within his allotted time.”

Thus the issue becomes: why did Mr. Roberts cut off Mr. Heaney two minutes early?  The Court:

Because Heaney was not silenced for violating a reasonable restriction, the First Amendment claim turns on Roberts’s motive or intent in silencing and ejecting Heaney from the meeting.

So the case continues.  The court refused to dismiss the claim against Mr. Roberts. It will be up to a jury to decide: did Mr. Roberts shut him down because of the content of the message?  If so, that would be viewpoint discrimination, which is unconstitutional in a limited public forum.

Board presidents should take note of this case. This is a binding decision from our 5th Circuit and will certainly be cited in future cases.  The case is Heaney v. Roberts, decided by the 5th Circuit on January 23, 2017.  We found it at 846 F.3d 795.

DAWG BONE: SOMETIMES IT’S BETTER TO SIT AND LISTEN.

 File this one under: FIRST AMENDMENT

Tomorrow: Bond money for band uniforms?

Dawg Bones

Why are we hearing about the “fake burping” case?

As the confirmation process for Judge Gorsuch nomination to the Supreme Court heats up, we are sure to hear about the “fake burping” case.  I wrote about this in the Daily Dawg last year, just because it was a colorful court case involving school law. Little did I know that it would become relevant to a SCOTUS nomination.

The case arose when a campus cop arrested a 7th grader for “fake burping” in P.E. class.  The parents sued the cop for wrongful arrest. The majority of the 10th Circuit sided with the cop, granting him qualified immunity.  Judge Gorsuch wrote a dissenting opinion that starts off with this:

If a 7th grader starts trading fake burps for laughs in gym class, what’s a teacher to do?  Order extra laps?  Detention?  A trip to the principal’s office?  Maybe. But then again, maybe that’s too old school.  Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant 13-year old to the principal’s office, an arrest would be a better idea.  So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer 94 pages explaining why they think that’s so.  Respectfully, I remain unpersuaded.

The Judge concluded his dissent with a nod to Charles Dickens and some comments that illuminate his judicial mindset:

Often enough the law can be “a ass—a idiot,” Charles Dickens, Oliver Twist….and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives.  Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands—and in that I see the best of our profession and much to admire.  It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass as they do.  I respectfully dissent.

Smart fellow, that Gorsuch.  Good writer, too—with a sense of literature and humor.

The case is A.M. v.  Holmes, decided by the 10th Circuit Court of Appeals on July 25, 2016.

DAWG BONE: RE: GORSUCH—TRUMP COULD HAVE DONE WORSE

 Tomorrow: a case your board presidents should know about…

Dawg Bones

It’s Toolbox Tuesday!! Who should attend?

The Toolbox is a full day training program focusing on the law regarding the discipline of students with disabilities.  The law on this subject is pretty complicated with a lot of very specific requirements. However, two main ideas come through loud and clear.  Idea number one is that every school should be safe—free of violence, drugs, weapons, bullying and disruption.  Idea number two is that every student should be served appropriately, continually, and in the least restrictive environment.

In the Toolbox, we offer a framework and a new vocabulary to empower school officials to supervise and guide students and staff so that both of those ideas can come to fruition.

Who should attend? Principals and assistant principals.  Special education directors.  Diagnosticians and LSSPs. Counselors. Behavioral specialists.  In short, the people who are responsible for making sure that your district complies with the law and serves each student properly.

If you are interested in a Toolbox training, send me an email.  We will get you on the calendar.

DAWG BONE: TOOLBOX TRAINING IS DESIGNED TO HELP THE PEOPLE WHO HELP THE KIDS

 File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Fake burping? This is a legal issue??

Dawg Bones

What’s the Deal with the Muslim Prayer Room at School?

Our Attorney General has provided unsolicited legal advice to the Frisco ISD concerning a “prayer room” that one of the high schools in the district has made available to Muslim students.  The AG wants to make sure that the folks in Frisco understand that they are not supposed to choose one religion over another.

So helpful!  Of course it would have been more helpful if Mr. Paxton had privately communicated his concerns to the superintendent of the district.  It would have been even more helpful if Mr. P had found out what really goes on in Frisco before sending his written advice to the media.

The pushback from Jeremy Lyon, the Frisco ISD superintendent, should cheer the hearts of educators tired of being kicked around by publicity seeking politicians.  Here are a few juicy quotes.

After noting that there was no evidence that the AG contacted the district prior to issuing the press release:

Absent such evidence, this “Press Release” appears to be a publicity stunt by the OAG to politicize a non-issue.

What?  Muslims praying in a public school is a non-issue?  The superintendent explained:

The principal of Liberty High School noted in his interview there have not been any issues for over seven (7) years with this room, that is, however, until the OAG’s “Press Release.”  It is important to note that this type of inflammatory rhetoric in the current climate may place the District, its students, staff, parents and community in danger of unnecessary disruption.

Paxton and other high ranking politicians are very concerned about the protection of religious freedom.  Dan Patrick has made it a legislative priority.  How ironic is it, then, that Paxton would stir the pot because a Texas district has found an effective way to protect the freedom of a religious minority group.  The superintendent:

The reason for the prayer room is to accommodate the practices of students who would otherwise miss two hours of class time to travel once a week to and from prayer.  The District is prohibited from failing to accommodate and/or discriminate against these students because their religion dictates the time and manner of their prayer.

That’s the law.  Religious practices are to be accommodated in a reasonable way.  If Christianity required Christians to pray five times a day, at specific times, including during the middle of the school day, our schools would be required to find a way to reasonably accommodate this practice. But Christianity does not require that. Islam does.

The folks in Frisco ISD understand that. It’s unfortunate that our state’s chief legal officer either does not understand that, or is only concerned with protecting the religious freedoms of the majority.

DAWG BONE: UNSOLICITED LEGAL ADVICE IS USUALLY A BAD IDEA.

Tomorrow: Toolbox Tuesday!!

Dawg Bones

Those “at will” and probationary employees…

We are rapidly approaching the time of year when school officials make most of their personnel decisions. Teacher contracts will be renewed for next year….most of them anyway. A few will be selected for a proposed nonrenewal.  Supervisors and principals will also be making decisions about all of the non-contract people who serve on an “at will” basis. And then we have the teachers who are on probation.

Here are three things to keep in mind with regard to the probationary and at-will group.

First, don’t believe the old notion that an at-will employee can be fired for “good reasons, bad reasons or no reason at all.” There is a court case that actually says that, but you’d be a fool to rely on it.  It’s more accurate to say that they can be terminated for any legally permissible reason, even if that reason does not amount to “good cause.”

Second, it’s true that a probationary teacher can be let go at the end of the contract term if the board determines that this is “in the best interests of the school district.”  If that teacher asks you for an explanation, you can recite those words and leave it at that.  But just remember that if the teacher pursues the matter further with a grievance or a complaint of discrimination or retaliation, you will have to offer a more specific explanation.

Third, legal cases involving public employment almost always turn on the true motivation of the employer. What was the real reason for the employer’s decision?  This motivation is often revealed through informal means—emails, off the cuff remarks.  If you are a supervisor, always remember the mantra.  What….you don’t know the mantra?? Well then: see today’s Dawg Bone!

DAWG BONE:  WE MAKE OUR PERSONNEL DECISIONS BASED ONLY ON JOB-RELATED, NON-DISCRIMINATORY AND NON-RETALIATORY FACTORS.

 File this one under: EMPLOYMENT

Dawg Bones

Upcoming audio conferences!

Our firm is hosting two audio conferences next month that you may be interested in.  On April 4th, attorneys Melanie Charleston and Blake Henshaw will address OFF CAMPUS CRIMES—ON CAMPUS PUNISHMENT.  This informative session will address these issues with regard to both students and employees.  Anyone who handles student discipline, or worries about some of the things employees do over the weekend would benefit from this discussion.

On April 5th we turn our attention to special education, with an audio conference on FIEs, IEEs AND THE LAW: WHAT DIAGS, DIRECTORS AND LSSPs NEED TO KNOW.  Leading this conversation will be attorneys Nona Matthews and Jan Watson, both of whom have worked extensively with directors and evaluation personnel on these issues.

These audio conferences are an excellent way of getting up to date information to help you fulfill your legal responsibilities. Sign up! Gather a group, and learn together.  Go to the firm’s website for more information and/or to register:  www.walshgallegos.com.

 Tomorrow: some reminders about at-will and probationary employees….

Dawg Bones

“He’s not going to change. He’s a hard-headed German.”

I remember a superintendent saying those words to me. We were talking about a principal.  The superintendent was getting pretty frustrated with the man and was ready to recommend the nonrenewal of his contract.   I looked over the written documentation in the file. There was one “needs improvement” but other than that, the principal had outstanding evaluations over multiple years.  We had no evidence that the principal had ever violated policy, stolen money, abused kids or acted unprofessionally.  He just had some communication problems.

I told the superintendent that it would be pretty risky to go for a nonrenewal.  We talked about other options, such as giving the man a written memo spelling out what needed to improve.   That’s when the superintendent uttered those words.  “We can do that,” he told me, “but he’s not going to change. He’s a hard-headed German.”

Let’s skip past the ethnic stereotype for now and just focus on the main concern.  The superintendent was saying that the written memo would not improve the situation and would only delay the inevitable.  Nevertheless, we worked together to craft a memo designed to get the man’s attention.

It worked.  The memo was blunt and direct, advising the principal that his one area of “needs improvement” was so important that the failure to improve could lead to a recommendation of nonrenewal a year later.  Not everyone would respond positively to that kind of kick in the pants, but this guy did.

I learned something from that experience. The main purpose of documenting employee performance is not to justify negative personnel decisions.  The main purpose is to improve employee performance.  In this case, that purpose was served. The hard-headed German was not so hard-headed after all.  Or maybe he was “hard-headed” and needed a two-by-four to the forehead, which is what the memo was.  In any event, it worked. A year later, the principal’s performance had significantly improved and the superintendent was happy.

DAWG BONE: SOMETIMES A BLUNT MESSAGE IS JUST WHAT IS NEEDED

File this one under: DOCUMENTATION

Tomorrow: some upcoming opportunities for you!

Dawg Bones

It’s Toolbox Tuesday!! What about 504?

Whenever I do the Toolbox training, someone is sure to ask about Section 504.  The Toolbox provides ten “tools” for school administrators to use when dealing with disruptive and/or violent student behavior.  The goal is to have a set of tools that empower campus administrators to serve each student appropriately while providing safety for all.  The Toolbox and its tools are all based on IDEA—our federal special education law—and the state law provisions regarding special education.

So it’s a natural question: what about 504?

The short answer to the question is that almost all of the procedures that schools use with special education students should be used when dealing with a student served under 504.  Do you have to count your days and determine if you have “changed placement”?  Yes. Do you have to conduct a manifestation determination prior to long term disciplinary action?  Almost always.

There are a few distinctions, but for the most part, the IDEA procedures provide a good framework for how you handle 504-eligible students.

Interested in a Toolbox day?  If so, just let me know!

DAWG BONE: 504 PROCEDURES FOR DISCIPLINE ARE PRETTY SIMILAR TO IDEA PROCEDURES

File this one under: SECTION 504

Tomorrow: a superintendent’s ethnic stereotype, a blunt message, and an improved principal.

Dawg Bones

Can you be eligible for special education if you have straight A’s?

I don’t think “Jane Doe” is the girl’s real name, but that’s how it reads in the court case.  When she was in the 2nd grade, the school district in Maine identified Jane as having a learning disability and started providing special education.  But the court tells us that “as a bright, hard-working student with dedicated parents, Jane improved her reading skills over the years, and she continued to perform well in school, as well as on standardized tests.”

She did so well that the district dismissed her from the special education program. This was 7th grade.  One year later, the parents asked the district to put her back in special education.

This dispute was over one of the fine points of special education eligibility.  Can you be “learning disabled” if you have deficits in “reading fluency” but your overall academic performance is very strong?  We know that students can get very good grades and still be eligible for special education due to a sensory disability, such as being blind or deaf. But can you be classified as “learning disabled” when you are achieving quite well?

The 1st Circuit Court of Appeals says that you can be.  The court held that a deficit in “reading fluency” alone can be enough for the ARD Committee to determine that you have a “learning disability,” even when that reading fluency problem is masked by straight A’s and good scores on statewide tests.

However, the court cautioned that there still must be evidence that the child “needs” special education services.  The remaining question is: “needs” special education services for what?  Obviously, Jane Doe does not need special education services to improve overall academic performance.  But if the purpose of special education services is to help the student improve in the more specific area of concern—here, reading fluency—then Jane might “need” special education.  This case does not categorically answer that question.

So where does that leave us?  The main point of today’s entry is to encourage districts not to automatically disregard eligibility just because the student is doing well in school. Can you have a high IQ and still be eligible for special education?  Yes.  Can you be in the gifted program and also eligible for special education?  Yes.

Like everything else involving special education….oh, wait….what I’m about to say should go in today’s Dawg Bone!

This case is Doe v. Cape Elizabeth School District, decided by the 1st Circuit Court of Appeals on August 5, 2016.  We found it at 68 IDELR 61 and 832 F.3d 69.

DAWG BONE: WHEN DISCUSSING SPECIAL EDUCATION NEVER SAY “NEVER” AND ALWAYS AVOID SAYING “ALWAYS.”

 File this one under: SPECIAL EDUCATION

Tomorrow: Toolbox Tuesday tackles Section 504.