All posts by Jim Walsh

Dawg Bones

A law designed for Don Corleone now aimed at you!

Arthur Smith has lost his fight against Houston ISD, but what a fight he put up!  The man had a contract with the district to design and produce custom t-shirts for some of the schools in the district.  He was to produce 2,103 shirts for $12,618.  That's six bucks a shirt--pretty good deal.

But then the district told Mr. Smith he would need to share the contract with a California outfit, and Mr. Smith refused.  So HISD just cancelled his contract.

Lawsuit! Mr. Smith alleged breach of contract, copyright infringement, tortious interference with his business, defamation and racial discrimination.  That was in his original petition to the court, which he did on his own.  Later, when he lawyered-up, he dropped the racial discrimination claim, but added 12 new legal theories including conspiracy, fraud, bribery, extortion, conversion, business disparagement, intentional infliction of emotional distress and racketeering.  That's right--"racketeering."  The suit alleged that the district violated RICO--the Racketeering Influenced and Corrupt Organizations Act.  I don't know about you, but when I hear that word I think of Jimmy Hoffa--not a procurement officer in a public school district. RICO is a law passed during the Nixon Administration designed to crack down on Mafia figures like Don Corleone--not mid-level bureaucrats operating out of a 10x10 government cubicle.

None of this was successful. The copyright claim was too late; the breach of contract was in the wrong court; most of the claims were dismissed due to governmental immunity.  You may be pleased to know that a governmental unit, like a school district "is not a proper RICO defendant as a matter of law." That's the Racketeering Influenced and Corrupt Organizations Act--RICO.

The case is Smith v. Houston ISD, decided by the federal court for the Southern District of. Texas on January 17, 2017. We found it at 2017 WL 175814.

DAWG BONE: BREATHE EASY.  YOU ARE NOT SUBJECT TO RICO AND ARE NOT LIKELY TO WAKE UP WITH A HORSE HEAD IN YOUR BED.

 File this one under: LIABILITY

Dawg Bones

Why does a school district need a lawyer????

That used to be a pretty common question.  Not as much anymore, but I do still hear that question. By way of answer, here’s what was reported in a recent weekly summary of developments from the National School Boards Association via their excellent Legal Clips service:

*A student in California was awarded $1.25 million by a jury based on the time her sub teacher forced her to urinate in a bucket rather than taking a bathroom break.  At least you have to acknowledge that it’s good to see a case that involves bathrooms but not transgender students.

*Another California district settled a case for $300,000 involving two students who alleged they were coaxed into participating in a drug sting.

*A parent in California sued the district alleging that staff negligently put bleach in her daughter’s feeding tube. I know what you’re thinking: what the heck is going on in California????

*The Voting Rights Act lawsuit filed on behalf of Asian Americans in Coppell ISD was voluntarily withdrawn so that the parties could work toward a solution. The suit says that Asians in Coppell outnumber the anglo students—signs of changing demographics in Texas.

*An Ohio district settled a case brought by the ACLU on behalf of a sub who alleged he was fired for his politically motivated Facebook posts.

Lots going on, as usual.

DAWG BONE: YES—SCHOOL DISTRICTS NEED LAWYERS.

Dawg Bones

Can a supervisor’s memo be an “adverse employment action”?

Lawyers for Alief ISD succeeded in persuading the court to dismiss almost all of Rosemary Tooker’s lawsuit.  Only one nagging issue remains to be litigated, but that one provides an excellent illustration of how retaliation claims work.

The suit included two claims relating to the Fair Labor Standards Act (FLSA).  Ms. Tooker alleged that she was denied overtime pay, and that she was punished for seeking it.  Notice—those are two separate claims.  The court dismissed the overtime claim, mostly due to the plaintiff’s failure to submit evidence to support it.  But that did not mean that the retaliation claim would also be dismissed.

To prove up a retaliation claim, the plaintiff has to show three things: 1) I engaged in “protected activity”; 2) I suffered an “adverse employment action”; and 3) #1 caused #2.  The court held that Ms. Tooker had alleged and provided sufficient evidence of all three to keep her case alive. Thus the court denied the district’s Motion to Dismiss this retaliation claim.

Ms. Tooker persuaded the court that a memo from her supervisor amounted to an adverse action.  Here is the relevant part of the memo:

In addition to your issues above it has come to my attention that you have alleged that you have not been properly compensated for overtime work.  You are hereby directed not to work any overtime unless specifically asked to do so by either Wilton Curry or me. 

 Failure to follow these directives will be viewed as insubordination and/or misconduct; therefore resulting in disciplinary action up to and including a recommendation for termination.

Thus at this point, the employee has not been fired, suspended or demoted. She has been told not to work overtime without specific permission. She has been threatened with harsher action, but only if she violates this very clear directive.  Does that strike you as sufficiently “adverse”?

The court held that it was.  The court pointed out that the general rule in the district was that employees could ask to work overtime.  Here, Ms. Tooker is told that she cannot ask for it—she was to wait to be told, and you sorta get the feeling that that’s not going to happen.  The court put it this way: “Because the potential need for overtime work is sometimes only within the employee’s knowledge, an employee who is barred from seeking prior approval for overtime might effectively lose that overtime and so might be dissuaded from pursuing the protected activity.”

My point here is that the standard for “adverse employment action” is not that high.  This is one reason why plaintiffs have more success with retaliation claims than with other claims. This is a perfect example—the FLSA claim was denied; the retaliation claim lives on.

We don’t know if Ms. Tooker will ultimately succeed with this claim, but having survived the district’s Motion to Dismiss, it’s safe to say that the price of settlement just went up. So let’s be careful about retaliation claims.

DAWG BONE: A SIMPLE MEMO MIGHT AMOUNT TO “ADVERSE ACTION.”

 File this one under: RETALIATION

Dawg Bones

It’s Toolbox Tuesday!!What’s this about a “non-consensus ARD meeting”?

The Toolbox is an all-day training program aimed at campus administrators and special education staff.  The Toolbox holds ten “tools” that are designed to empower you to provide appropriate services to every student, while maintaining safety for all.  Today, a few words on Tool #9—Leadership at the Non-Consensus ARD Meeting.

You have to be very skillful to use this tool well.  When the ARD Committee is not coming to consensus, the situation is fraught with the possibility for a breakdown in communications.  Emotions rise. Tensions rise.  Perhaps we don’t have much experience in this situation.

Let’s remember the basics about ARD meetings.  First, there are only two parties at the meeting. There might be a dozen people, but there are only two “parties.” There is the school; and there is the parent or adult student.  Second, the meeting is run by the school. Federal law tells us that the school district is responsible for initiating and conducting these meetings. So it’s not the student’s meeting and it’s not the diagnostician’s meeting. It’s the school district’s meeting.

Put that together and I think you will conclude, as I have, that the “administrative representative” of the school district is the logical person to provide leadership at a fraught meeting.  He or she should be the one to communicate clearly to the parent that the team does not appear to be in consensus.  The meeting cannot go on forever. There comes a time when someone needs to steer the conversation to closure, with a clear road map of what happens next.

In the Toolbox training we talk about what this leadership looks like and how it should be exercised.

Interested in a Toolbox training?  Just let me hear from you!

DAWG BONE: OUR MEETING, BUT LET’S NOT BE OBNOXIOUS ABOUT THAT.

 File this one under: SPECIAL EDUCATION

Dawg Bones

I never knew there was such a thing as a Class A Air Conditioning and Refrigeration Contractor License. Did you?

You learn a lot of things when you read court cases.  For example, I just learned that there is such a thing as a Class A Air Conditioning and Refrigeration Contractor License, and that it’s pretty valuable.  Mr. Proffitt, the HVAC Foreman in Alief ISD had this license. And on top of his salary, the district paid him $800/month for the right to use his license.

When Mr. Proffitt retired, the district turned to Rosemary Tooker. She had the same license, and agreed to let the district use it. But they paid her only $400/month.

This sounds like a very simple case of sex discrimination, and it would be if those were the only facts. However, it turned out that Mr. Proffitt had three licenses, not one.  He was paid $400 for the AC and Refrigeration license, and $200 each for the other two, for a total package of $800.   Ms. Tooker had one license, and she was paid the same amount for that license as Mr. Proffitt. Case dismissed.

This case involved multiple other issues. We’re going to highlight one of those on Wednesday. So keep coming back.

The case is Tooker v. Alief ISD, decided by the 14th Court of Appeals on January 4, 2017.

DAWG BONE: IN A LAWSUIT, THE FACTS MATTER.  ALL OF THEM.

 File this one under: SEX DISCRIMINATION

Dawg Bones

No escaping special education!

I spoke yesterday at the annual UT School Law Conference, which is going on today also.  My topic was about what the general school attorney needs to know about special education. The first slide points out that “there is no escaping special ed!”

I think that’s the truth and it becomes truthier every year. (Yes…I know that’s not a real word).

We used to have lawyers in our firm who would run to the hills to avoid a phone call that included words like “ARD” or “manifestation determination.”  But that’s becoming close to impossible.  The students in special education are a small minority of your students, but they produce a disproportionate percentage of legal concerns.  All of the lawyers need to know the basics.

So that’s what my 30-minute talk was about—the basics of discipline, parent rights, a few words on the recent controversy over the 8.5% issue, and some suggestions for the proper role for an attorney.

I think the most important thing I told those lawyers yesterday was that the lawyer serves the school district well when he or she advises them to do the right thing for the student. Special ed lawyering is not about cutting corners or finding clever ways to avoid legal responsibilities. It’s about making sure the client is in full compliance. The best way to do that is to do the right thing.

Maybe a good thought to end the week with.

DAWG BONE: IN SPECIAL ED, DO THE RIGHT THING.  IN GENERAL ED, DO THE RIGHT THING. IN LIFE, DO THE RIGHT THING.  YOU GET THE IDEA.

 File this one under: SPECIAL EDUCATION

Dawg Bones

Employee in trouble, rallies support from co-workers. Is this “free speech”?

Yesterday we told you about disability discrimination claims arising from the termination of a counselor in Lockhart ISD.  The same counselor also alleged that the firing was an act of retaliation for her exercise of First Amendment rights to free speech.  Of course school employees have First Amendment protection, but only when they are speaking as a “citizen” on “matters of public concern.”  If they are expressing themselves solely about their own employment situation, they do not have that constitutional protection.

In this case, the counselor cited three communications that she thought would qualify as “free speech.” The first was a letter to some of her colleagues. The letter stated that she was having “tremendous difficulties” working with the principal and was scheduled to have a meeting with the assistant superintendent.  The context for this was that the counselor had already been reprimanded and given various directives by the principal. She was likely apprehensive about the meeting with the assistant superintendent. The letter asked her colleagues to provide good evaluations for her if asked.

Sure enough, in the subsequent meeting the assistant superintendent advised the counselor that he would recommend her termination.  This led to communication number two—an email to her colleagues about the upcoming board meeting at which her termination would be discussed.  She outlined allegations of “unspeakable acts” committed against her, and sought the support of her co-workers.

The third communication was not from the counselor, but rather, a letter from some of the faculty members who urged the board not to terminate the counselor’s employment.

Free speech? Is this speaking as a “citizen” on “matters of public concern”? Of course these communications implicitly expressed the view that Bluebonnet Elementary School was not well managed.  Is this not a matter of general public concern to all citizens? That was the argument, but the court did not buy it. Looking at “the content, form, and context” of the communications, the court concluded that this was primarily aimed at the counselor’s personal employment dispute.  Key Quote: “the Court does not agree with Plaintiff that it is enough that her communications impliedly concerned ‘[the principal’s] ability to effectively run Bluebonnet Elementary.”

That took care of the First Amendment issue. The court granted a summary judgment in favor of the district. The case of Eubank v. Lockhart ISD was decided by the federal court for the Western District of Texas on January 17, 2017.

DAWG BONE: SPEAKING OUT ABOUT YOUR OWN DISPUTE WITH YOUR BOSS MIGHT NOT QUALIFY AS “FREE SPEECH.”

File this one under: LABOR AND EMPLOYMENT and FIRST AMENDMENT

Tomorrow: There is NO ESCAPING special education!

Dawg Bones

Some lessons about the ADA

We can learn three things from a recent federal court decision involving the termination of a school counselor, who alleged that she was the victim of disability-based discrimination.

First, it’s tough to make yourself the victim of discrimination when the school gives you everything you asked for.  As the court noted, “Plaintiff does not seriously dispute that she received accommodations for her ailments at all times relevant to this controversy.” When the counselor requested accommodations due to some health issues, the principal responded within 30 minutes that she would “gladly accommodate anything [Plaintiff’s] health requires.”  The principal not only made that general offer, she provided specifics, including a promise to personally cover the classroom for the counselor when needed.

Second, accommodating an employee’s disability requires an “interactive process.” But the employee cannot gripe about the lack of that process if it was the employee who threw the monkey wrench into the system. Here, the court cited an earlier decision for the notion that “An employer cannot be found to have violated the ADA when responsibility for the breakdown of the ‘informal, interactive process’ is traceable to the employee and not the employer.”

Third, it’s acceptable for the employer to require some documentation to help it figure out how to accommodate the employee.  In this case, the employee’s health problems were not readily apparent or obvious.  This is not like a case where the employee is in a wheelchair, or wearing dark glasses and walking with a cane.  This employee had diabetes, plantar fasciitis and intermittent vertigo. The school asked for some documentation to better understand the situation.  The court found that to be reasonable.

The school eventually sought termination of the counselor’s employment, citing ten reasons for this.  The independent hearing examiner found enough evidence to justify termination based on seven of those reasons.  The examiner concluded that the working relationship between the parties was “irretrievably broken.”

This suit, alleging ADA-discrimination followed. The court granted a summary judgment to the district, finding no merit in the ADA claim. The case is Eubank v. Lockhart ISD, decided by the federal court for the Western District of Texas on January 17, 2017.

This case also involved First Amendment issues which we will address tomorrow.

DAWG BONE: IF THEY GIVE YOU EVERYTHING YOU ASK FOR, YOU ARE PROBABLY NOT A VICTIM OF DISCRIMINATION.

 File this one under:  DISABILITY LAW

Tomorrow: If I rally my colleagues to my side, is that “free speech”?

Dawg Bones

It’s Toolbox Tuesday!! And the Dawg is headed to Region 16!

I’m off to Amarillo tonight for my annual legal update at Region 16. Get the donuts ready!  For those of you who have never been there, I can assure you that R16 provides outstanding donuts.  I’d rank them #1 among the ESCs in that important category.  Great pizza up there in the Panhandle also. So you can see, I’ll be eating very healthy.

That has nothing to do with the Toolbox, but it’s on my mind. So there.

As to the Toolbox, here’s a reminder: the Toolbox offers ten tools that are available for you to deal with disruptive students appropriately while serving them in the LRE and maintaining a safe campus.  Four of those tools involve a “change of placement.”

In the Toolbox training we divide changes of placement into the “educational” and the “disciplinary.”  You can propose an educational change of placement when the student’s behavior is a manifestation of disability.  There are two tools in the box that are educational changes of placement—Tool #2 is used when you have parent consent; Tool #3 is used when you don’t.

Tool #6 is a disciplinary change of placement. You use that one only when the behavior is not a manifestation of disability.

Then there is Tool #5—a removal due to “special circumstances.” That one should also be characterized as “disciplinary” although it can be used regardless of how the manifestation determination comes out.

Sound interesting?  I hope so. Our firm provides a full day training on the Toolbox, complete with your very own Toolbox book, some nifty laminated charts and a generally informative and enjoyable day.  Let me hear from you if you’re interested.

DAWG BONE: TEN TOOLS. FOUR WAYS TO CHANGE PLACEMENT.

 File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: An ADA case…

Dawg Bones

Can T.E.A. be held accountable when a charter school goes belly up?

A Pennsylvania charter school shut down due to financial problems. Parents of two students sought a due process hearing, alleging a denial of FAPE. They named as defendants both the defunct charters, and the state agency. The hearing officer ruled in favor of the parents.  Here, the parents sought attorneys’ fees from the state agency. The agency filed a Motion to Dismiss, arguing that it did not deny the student’s FAPE, and was not a “guarantor” of charter school solvency. The court refused to dismiss the case, and made this observation:

As the Charlene R. Court [an earlier case with similar facts] noted, Pennsylvania has encouraged the growth of charter schools, which are considered to be public schools and LEAs under the IDEA.  These charter schools, unlike public school districts, “can simply disappear,” leaving students with no recourse other than suing the PDE and the Commonwealth to vindicate their rights.

Texas, likewise, has encouraged the growth of charter schools, treats them as public schools, and has seen a few go bust in the middle of the school year.  Perhaps this could happen here as well.

The case is R.J. v. Rivera, decided by the U.S. District Court for the Eastern District of Pennsylvania on August 16, 2016.  We found it at 68 IDELR 101.

DAWG BONE: IT IS THE STATE THAT HAS THE ULTIMATE RESPONSIBILITY TO ENSURE THE PROVISION OF FAPE.

File this one under: SPECIAL EDUCATION

Tomorrow: Toolbox Tuesday!!