All posts by Jim Walsh

Dawg Bones

How do you show that a student’s off-campus use of social media disrupted school activities?

WELCOME TO OUR NEWEST GROUP OF SUBSCRIBERS—THE DIRECTORS AND PRINCIPALS IN FRISCO ISD!!  HOPE YOU FIND THE DAILY DAWG HELPFUL IN YOUR DAILY WORK. 

Frisco subscribed in bulk.  You can do that, Readers.  We offer discounts. So let us know if you are interested.  Now…on to the law! 

A student creates a Twitter account that contains ugly and demeaning personal comments about classmates.  All this happens off campus.  Thus when the school suspends the student, his lawyer claims that his First Amendment rights have been violated.  While the tweets were ugly and vulgar, there was no hint of violence.  The lawyer claims that there was no disruption of school, and therefore, this is not the school’s business.  What do you think?

A federal court in New Jersey ruled in favor of the school in this case.  What’s most interesting about the decision is how the court concluded that there was a disruption of school activities.  The court noted that 1) there were complaints from parents and students about the Twitter account; 2) this required school administrators to investigate the matter, which “took them away from other school duties”; and 3) the student lied about his involvement with the account, which made the situation worse.  Key Quote:

Complaints from parents and students about the HIB-speech (Harassing, Intimidating, Bullying) content of the Twitter account, and an investigation into these complaints, which was stymied by plaintiff’s intentional decision to lie about his involvement, constitute the “material and substantial disruption” to the “work and discipline of the school” requirement necessary to permit the school to discipline plaintiff for his out-of-school speech.

Keep in mind that schools can discipline students for vulgarity, but only if this occurs at school or school-sponsored activities.  When the expression occurs off campus, something more is required.  This case follows the recent trend, recognizing the school’s duty to prevent speech that harasses, intimidates or bullies other students.

The case is Dunkley v. Board of Education of the Greater Egg Harbor Regional High School District. It was decided by the U.S. District Court for New Jersey on October 20, 2016.  We found it at 2016 WL 6134518.

DAWG BONE: ON CAMPUS: YOU CAN PROHIBIT VULGARITY.  OFF CAMPUS: YOU NEED SOMETHING MORE.

File this one under: STUDENT DISCIPLINE.  FIRST AMENDMENT

Dawg Bones

Is anyone reading this one?

Just wondering if anyone will read today’s entry. We expect most of you are headed over the river and through the woods to Grandmother’s house, or wherever the turkey and the football can be had. Have a happy day. Be grateful.

DAWG BONE: GOBBLE GOBBLE GOBBLE!!!

Dawg Bones

Dear Dawg: I took personal leave to go to the 7th Game of the World Series. Now they are punishing me for it. What gives?

Dear Dawg: I am proud to report that when the Chicago Cubs ended 108 years of suffering by winning the World Series for the first time since 1908, I was present.  My grandfather was a Cubs fan. He taught me to love the game. Taught me to keep score.  So I kept score of that extra-inning victory, and the next day, left that scoresheet on Granddad’s tombstone.  May he Rest in Peace, right alongside Ernie Banks.  Of course, I had to take some personal leave days to do this.

So imagine my shock when I get back to school and find that I’ve been written up for violating our personal leave policy!  There is another teacher down the hall from me who missed a couple of days that same week to go to a NASCAR event in Tennessee.  NASCAR!!  A bunch of rednecks drinking beer, waving Confederate flags and watching loud motor vehicles turn left!  I, on the other hand, was witnessing an iconic moment in the long history of our National Pastime.  I feel sure my rights have been violated, Dawg. Set ‘em straight!  CUBS WIN! CUBS WIN!! CUBS WIN!!!

DEAR CUBS WIN!:  We honor your devotion to baseball, your grandfather and the Cubs. But you got your facts wrong.  The school did not measure the relative merits of the World Series v. NASCAR. If they had, they would have violated the law. Teachers can take personal leave for personal reasons, and it’s improper for the school to distinguish between the “worthy” and the “unworthy.” For a recent illustration of this, see Houston v. Point Isabel ISD, Docket No. 014-R10-01-2016 (August 25, 2016).

No, my friend, it was a lot simpler than that.  As you stated, your fellow teacher took “a couple of days,” (i.e., two days).  You took three.  Your school’s policy allows teachers to take personal leave for any reason, but not for more than two days in a row. That’s a valid policy.  So to put this in terms you will understand, the official scorer is giving you the E on this play.  Take it like a man and consider….it’s a small price to pay to witness the end of more than a century of suffering.

DAWG BONE: LEAVE POLICIES CANNOT DISTINGUISH BETWEEN THE “WORTHY” AND THE “UNWORTHY.”

 File this one under: LABOR AND EMPLOYMENT

Dawg Bones

Dear Dawg: Is it OK to lower a teacher’s appraisal rating because she took all five days of personal leave?

 Dear Dawg: We are trying to encourage our teachers to be present as much as possible. We know that they get five days of personal leave, and we don’t punish them for taking those days. But we do make note of it in the Appraisal.  We have an indicator in Domain IV on “Attendance.” You get marked as “Distinguished” if you have zero absences.  If you have two absences, you get marked down to “Accomplished.”  If you have five, you are merely “Proficient.”  Is there any problem with this?  SHOWING UP IS HALF THE BATTLE.

DEAR SHOWING UP: Yes, there is a problem.  You say that you are not punishing the teacher, but the Commissioner thinks that you are.  This is what Point Isabel ISD was doing and the Commissioner flat out said it was illegal.   Key Quote from the decision:

Most importantly for this case, a district cannot adopt a policy that makes it difficult to take leave.  Since appraisals have a significant impact on teachers, marking a teacher’s appraisal down for taking leave that a teacher is statutorily allowed to take is found to make taking leave more difficult. For this reason, it cannot be done.

The case is Houston v. Point Isabel ISD, Docket No. 014-R10-01-2016, decided by Commissioner Morath on August 25, 2016.

DAWG BONE: YOU CAN REWARD TEACHERS FOR NOT TAKING LEAVE, BUT YOU CANNOT PUNISH THEM FOR TAKING IT.

File this one under: LABOR AND EMPLOYMENT

Dawg Bones

Dear Dawg: We’ve got the mother, the stepmother, and the girlfriend all showing up at the ARD meeting. Who is the go-to person here?

Dear Dawg:  I hear that there used to be a time when almost all children were raised by two people, those being their biological parents. It is so much more complicated now.  We had an ARD meeting yesterday where three women showed up, all claiming to be the one who should be treated as the parent.

We had the biological mother. We don’t think that her relationship with the dad was ever formalized, if you know what I mean.  In fact, we’re not sure that “relationship” is the right word.  She left the scene very shortly after giving birth to the boy.  But she is the bio mother and no one questions that. So she claims priority based on the nine months of pregnancy, the many hours of labor and the pains of childbirth.

Then we have the current wife of the dad. I guess she qualifies as “stepmom.”  She claims that she’s the main one because she’s the only one who has actually married the father.  However, the two of them have not been together for quite some time and that’s because of…

The girlfriend.  She and dad have been living together “without benefit of clergy” as they say for several months.  And the kid lives with them.  So she claims priority because she’s the one actually giving the kid his Fruit Loops in the morning and tucking him in at night.

Dad steered clear of all of this. Smart fellow, that guy. But we have to sort this out. What do you say?  LONGING FOR SIMPLER TIMES.

DEAR LONGING:  First of all, if it’s Fruit Loops every morning, we think the GF is disqualified.  More to the point, however, there is actually a federal regulation that addresses your quandary.  34 CFR 300.30 defines the word “parent,” and in doing so, it creates a hierarchy of people who can be treated as “the parent.”

The stepmom is not a “parent” under this definition.  The definition includes “An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives…” Since the child is not living with the stepmom, she does not qualify.

The GF could qualify.  Although she is not a relative, the definition is not limited to relatives, and the child does live with her.  But you would want some written documentation to establish that she is “acting in the place of” the dad. And then, of course, there is the Fruit Loops issue to consider.

But the bio mom holds the aces here.  First of all, she is definitely a “parent” under the definition. Furthermore, the regulation anticipates exactly the kind of mess you are in, and provides guidance. It states that when two or more people are qualified to be the “parent” the biological or adoptive parent who is “attempting to act as a parent” should be treated as the parent, unless there is a court order to the contrary. You didn’t say anything about any court orders.  If nobody presents you with a court order that identifies them as the decision maker, then that bio mom is the “parent” for purposes of your ARD meeting.

Fortunately, you don’t have to sort out this tangled family mess beyond that, so try to avoid any discussion of who has the kid on Thanksgiving Day.

DAWG BONE: FEDERAL REGULATIONS ACTUALLY PROVIDE ANSWERS TO TOUGH QUESTIONS

 File this one under: SPECIAL EDUCATION

Dawg Bones

We omitted the child’s name. We redacted all of the personal information. We’re OK….right?

Yesterday we told you about the case from New York where a Director of Pupil Services is facing possible personal liability for disclosing confidential medical and educational records without parental consent.  The court held that the Director might be liable for this, but whether that will actually happen will be decided later.  One of the issues the court will eventually have to deal with is the fact that much of the student’s information was redacted.

At this early stage of the litigation, the court addressed this issue in a footnote:

Notwithstanding Defendants’ claim that “the district redacted personally identifiable information from the records in the referral packets,” the Court must accept as true Plaintiffs’ allegation that “the redacted documentation contained personally traceable information which was sufficient to identify the individual and, indeed, one of the recipients of the documents was able to identify the student based on the documents.”

In other words, redaction does not always get the job done.  FERPA regulations define “Personally Identifiable Information” to include:

Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.  34 CFR 99.3.

If a “reasonable person” in your “school community” is likely to be able to figure out who you are talking about, then you have not redacted enough.  You have disclosed “Personally Identifiable Information” without ever using the student’s name.

The case is W.A. v. Hendrick Hudson Central School District.  We found it at 67 IDELR 178 (S.D.N.Y. 2016).

DAWG BONE: DON’T BE GUILTY OF INSUFFICIENT REDACTION.

 File this one under:  CONFIDENTIALITY

Tomorrow: a regular family feud breaks out at the ARD meeting.

Dawg Bones

Can you be personally liable for violating FERPA?

The U.S. Supreme Court has already decided that there is no “private cause of action” authorized by FERPA (Family Educational Rights and Privacy Act).  For you lawyers and lawyer wannabes, that happened in Gonzaga University v.  Doe, 536 U.S. 273 (2002). That means that even if you violate FERPA by improperly disclosing confidential student information, no one will be able to sue you over the FERPA violation. The court would dismiss any suit like that.

But lawyers are a creative lot.  A lawyer in New York has figured out a way around the Gonzaga case. The lawyer took a routine FERPA violation and called it a violation of the constitutional right of privacy, protected by the Due Process Clause.  So far, this has worked.  The federal district court in New York held that the Director of Pupil Services could be held personally liable for violating the Due Process Clause.

How did this happen?  The IEP Team had already agreed that the student needed to be served in an out-of-district program.  The Team identified five programs that could possibly serve the student, and asked the parents for consent to send information to these programs. The parents did not give consent. Instead, they asked for more information about the five programs before they would give consent.

The director sent the referral packets anyway, albeit with a lot of personally identifiable information redacted.  The court was not convinced that the redactions went far enough.

Thus the allegation in the lawsuit is that the Director sent out referral packets containing confidential medical and educational records without parental consent and against specific parental direction.   The court held that this allegation, if proven true, would be a constitutional violation.  Moreover, 2nd Circuit authority made it a violation of a legal principle that was “clearly established,” thus opening the door to personal liability for the director. Key Quote:

Thus, in alleging “the disclosure of confidential educational and medical records without consent and against the express identification of the lack of consent from [the student’s] parents,” Plaintiffs have plausibly pleaded a violation of a constitutionally protected interest.

What about the fact that information was redacted?  Tune in to tomorrow’s Dawg for more on that.

The case is W.A. v. Hendrick Hudson Central School District.  We found it at 67 IDELR 178 (S.D.N.Y. 2016)

DAWG BONE: FERPA VIOLATION MAY BE MORE THAN A FERPA VIOLATION.  IT MIGHT BE A CONSTITUTIONAL PROBLEM

 File this one under: LIABILITY

Tomorrow: did we redact enough?

Dawg Bones

It’s Toolbox Tuesday!! When should we revise a student’s BIP?

We usually talk about the Toolbox here on Tuesdays. The Toolbox is a one day training program focusing on services to students with serious behavioral issues.  We talk a lot about behavior plans.

The answer to today’s question is straightforward: you should revise a student’s BIP when it becomes clear that the existing BIP is not working. Oftentimes this becomes apparent when the student commits a serious violation of your Code of Conduct, one that might lead to a disciplinary change of placement.

But a case I bumped into recently reminded me that there are also other times when the ARD Committee should consider making some changes.   In Brown v. District of Columbia, a student was shot eight times, sustaining serious physical and emotional injuries. The court held that the district should have convened an IEP Team meeting to consider what changes this would require in his IEP. Not doing so deprived the student of FAPE.

I hope you don’t encounter anything quite that dramatic.  But the case is a good reminder that sometimes IEPs and/or BIPs should be revisited based on outside issues that may have an impact on the student.  This student committed no offense.  He was a victim. But because of the impact this traumatic event might have on his education, the court held that the IEP Team (ARDC) should have met to discuss this.

We found this case at 67 IDELR 169.  It was decided by the District Court for the District of Columbia.

DAWG BONE: DOCUMENT YOUR EFFORTS TO ADDRESS TRAUMATIC EVENTS THAT MAY AFFECT THE STUDENT’S EDUCATION.

File this one under: SPECIAL EDUCATION

Tomorrow: Can you be personally liable for violating FERPA?

Dawg Bones

We hate to start your week with this…

There is a lawsuit pending in Georgia that is likely to get some national attention.  The suit runs 176 pages, identifying 23 counts against the Fulton County School District and 28 individuals.  If half of what is alleged is true, the district and some of its employees will be facing serious liability. The teacher is alleged to have used techniques on students with disabilities that stopped just short of waterboarding.  The court noted that the plaintiffs had already settled with the teacher who was allegedly the direct abuser of the child, but the case is proceeding against the others.

What’s this about?

In sum, the Complaint alleges that a FCSD teacher routinely abused special education students, that FCSD and dozens of its employees knew of the abuse, but that FCSD did little to nothing in response for at least three years.

And the principal of the school?

The Complaint, which alleges a multi-year reign of terror by Pickens [the teacher] against her disabled students, and a totally impotent and improper response by Principal Boyd and others, sufficiently alleges “clearly established” violations of the Constitution.

You want to know why our legislature ordered cameras for some of our special education classrooms?  Because of cases like this.

The case is Williams v. Fulton County School District. We found it at 67 IDELR 262 (N.D. Ga. 2016).

DAWG BONE: LET’S KEEP A CLOSE EYE ON THOSE SELF-CONTAINED CLASSROOMS.

Tomorrow: Toolbox Tuesday takes a look at revising a BIP!

 

Dawg Bones

Dear Dawg: We’ve got a small but growing number of Muslim students…..

Dear Dawg: We’ve got a small but growing number of Muslim students entering our schools, and so some issues are coming up about how to accommodate some of their religious practices.  Do you know of any good resources on this subject?  I KNOW THE BASICS….I THINK.

DEAR I KNOW THE BASICS:  Well, I suspect you do know the basics.  All students are welcome in our public schools, and all are to be treated with respect, dignity and non-discrimination.  Non-discrimination often involves making accommodations and/or exceptions from your general rules, as long as this does not create a major problem.  Issues may arise involving clothing, dietary restrictions, holidays, classroom assignments, mixing of the sexes, and prayer during the school day.

Here are two good resources:  first, An Educator’s Guide to Islamic Religious Practices https://www.cair.com/images/pdf/educators_guide.pdf.

Second, for the lawyers who are members of the Council of School Attorneys, the June 2016 issue of Inquiry and Analysis: https://cdn-files.nsba.org/s3fs-public/reports/0616_InquiryAnalysis.pdf?F6S7R2.mWsv2EwZu3jCK21.9alNwbyZf

Questions about the proper boundary line between a proper accommodation and an improper one are tricky and require specific legal advice. But these publications will get you off to a good start.

DAWG BONE: LOOK BEFORE YOU LEAP.  RESEARCH BEFORE YOU DECIDE.

 File this one under: RELIGION