All posts by Jim Walsh

Dawg Bones

Educators say “those services are not ‘special ed.’” Court says: “Yes they are.”

According to the Pittsburg USD in California, young L.J. did not need special education services. The boy had a lot of problems, but his academic performance was good, and he was even making some progress on behavior. The district provided some assistance to help him along, but nothing that the district considered “special ed.”

The mother disagreed and requested a due process hearing. The administrative law judge agreed with the district. The boy was doing reasonably well with the general education assistance the district provided. He did not “need” special ed services, and therefore, was not eligible.

The mother disagreed with the administrative law judge, and appealed to the federal district court. That court agreed with the school district also.  L.J. was not eligible.

The mother disagreed with the federal judge, and appealed to the 9th Circuit.  Now that court has reversed all of the previous decisions. In doing so, the court held that the services the district was providing were not general education assistance. The district was, in fact, providing “special ed.”

Now that’s interesting.  The educators who provided the services did not classify them as “special ed” but the court did.  This case is a wonderful illustration of how fuzzy is the line separating “special ed” from “general ed.” This is particularly so in the age of RtI.

The court identified four specific features of the services the school was providing that moved those services over the line into “special ed” territory.  They were:

*The district was providing one-on-one assistance with a paraprofessional;

*The district was providing specially designed mental health services, including Group and Individual Rehab, Group and Individual Therapy, Family Therapy, Collateral Family Group and Intensive Home-Based Services;

*The district provided “extensive clinical interventions” by a Behavior Specialist;

*The district provided accommodations, “such as persistent teacher oversight, additional time to complete classwork or tests, shortened assignments, discretion to leave the classroom at will” and “the option to complete classwork or tests in other rooms or with one-on-one support.”

Taken together, the court concluded that the district was already providing special education services, which explained why the boy showed some degree of progress.

You might think that when educators say, “Your Honor, those services are not ‘special ed’” that courts would defer to the judgment of the professional educators. But when terms like “special education” have a legal definition, it opens the door to this kind of judicial second-guessing.   This case nicely illustrates how that can happen.

The court ordered the district to develop an IEP for L.J. so that the services he is getting will be guaranteed.  The school district will owe a lot of attorneys’ fees on this one.  That persistent mother took the case all the way to the Circuit Court before she prevailed.

The case is L.J. v. Pittsburg USD, decided by the 9th Circuit Court of Appeals on September 1, 2016.  We found it at 2016 WL 4547360.

DAWG BONE: EVEN IF YOU DON’T THINK IT’S “SPECIAL ED” THE JUDGE MIGHT THINK IT IS.  BE CAREFUL.

 File this one under: SPECIAL EDUCATION

Dawg Bones

Having trouble keeping up with all the transgender developments?

I attended the fall seminar sponsored by the national Council of School Attorneys a couple of weeks ago in Portland, Oregon.  As has been the case for the past couple of years, litigation over transgender students was issue number one.

The National Schools Boards Association is doing a great job of keeping up with all of this and summarizing all of the developments.

Information compiled by NSBA shows the following as of October 25th:

*some litigation activity in 18 states;

*23 separate legal cases at various stages;

*13 of those cases are in favor of the transgender student’s use of facilities that match gender identify; ten are opposed.

The case of G.G. v. Gloucester County School Board remains the only case decided by a Court of Appeals. That court (4th Circuit) ruled in favor of the transgender student, based on deference to the interpretation of the law by the Departments of Education and Justice.  Now we have learned that this case will be heard by the Supreme Court.

Developments continue fast and furious.  The lawyers at Walsh Gallegos are all members of the Council of School Attorneys (COSA), with full access to the information and resources at NSBA.  If you want to know more, contact any of the lawyers in the firm.

DAWG BONE: ON SOME ISSUES YOU FACE LITIGATION WHICHEVER WAY YOU TURN.

File this one under: TRANSGENDER STUDENTS

Dawg Bones

It’s Election Day!

It’s normally “Toolbox Tuesday” around here, but today we take a break from that. Today is special.

I remember clearly where I was on this morning 56 years ago. Getting ready to go to school, I listened to the radio in our kitchen as I was having breakfast. It was election day—the first one I was aware of. I grew up in a neighborhood on the South Side of Chicago where just about everyone was Catholic, and almost all were Irish. So everyone I knew was in favor of the young, charismatic, Irish Catholic Senator from Massachusetts, John F. Kennedy.

Thus I was alarmed when the radio reported that a village in New Hampshire (Vermont? Maine? Someplace Up There) had already reported their votes, and they favored Nixon over Kennedy by 12-8. I turned to my mom in panic: “We’re behind!!” She seemed unperturbed, quietly assuring me “there are a lot more votes to be counted.”

Here’s hoping Texas has a record voter turnout. Here’s hoping for acceptance of the outcome, however that may be. Here’s hoping for the election of officials at all levels who will truly support public education. Let us all be grateful to live in a country where our votes matter.

DAWG BONE: GET OUT THERE AND VOTE!

Dawg Bones

Think twice before running an errand for your bedridden mother.

Police Officer Jeffrey Heffernan was demoted from his position in Paterson, New Jersey because he was seen picking up a yard sign in support of a candidate for mayor.  The problem was that the candidate was the wrong candidate.  Officer Heffernan’s boss supported the other candidate. When word got back to Officer Heffernan’s supervisors about this, they punished him with the demotion.  Heffernan sued, alleging that this was retaliation for his involvement in protected political activity.  After all….can’t a guy pick up a yard sign???

But here’s the weird part of this story.  We still don’t know who Heffernan supported for mayor.  He was not picking up that yard sign for himself. He was running an errand for his bedridden mother, who asked him to get the yard sign.  We don’t know who Heffernan supported for mayor, we only know who his mom supported.  So the lawyer for the city argued that Heffernan was not engaging in “protected activity.” He was not exercising his constitutional rights when he picked up the yard sign.  He was just being a good son.

The problem for the city was that the boss thought that Heffernan was supporting the wrong candidate, and that’s why the demotion.  In other words, the boss’s motive was tainted, even though it was based on a faulty premise. So who wins here?  Does the cop lose his case because he was not really exercising his rights? Or does the city lose because the boss had a bad motive?

This case worked its way all the way to the Supreme Court, which ruled in favor of Heffernan 7-2.  Justice Thomas dissented, noting that “demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional.”  But the majority disagreed. Key Quote:

We conclude that, as in [Waters v. Churchill—a 1994 SCOTUS case] the government’s reason for demoting Heffernan is what counts here.  When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. Section 1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.

Decisions about public employment should always be based on job related, non-discriminatory, non-retaliatory reasons.  So before you decide to recommend termination, nonrenewal, or any significant adverse action….check your motives.

The case is Heffernan v. City of Paterson, decided by the Supreme Court of the United States on April 26, 2016.

DAWG BONE: JOB RELATED. NON-DISCRIMINATORY.  NON-RETALIATORY.  OUR MANTRA.

File this one under:  CONSTITUTIONAL RIGHTS

Dawg Bones

New Ethics Rule in the works to prevent “passing the trash.”

The State Board for Educator Certification has approved a new standard to be incorporated into the Educator Code of Ethics.  Standard 1.14 as drafted addresses what has come to be known as “passing the trash.” This refers to the practice of knowingly allowing, or even facilitating, the movement of an employee from one school district to another despite evidence that the person has engaged in unseemly conduct. We already have standards requiring superintendents to report certain types of employee misconduct to SBEC when the employee is terminated due to such conduct, or resigns in the face of the evidence of misconduct. The new Standard 1.14 goes even further. It would, for example, make it an ethical violation if a teacher recommends his friend for a job in a new district, even though he has “probable cause to believe” that his friend engaged in sexual misconduct with a student.

Here is the language of the new Standard, which is scheduled for approval by the State Board of Education at its November meeting:

 Standard 1.14. The educator shall not assist another educator, school employee, contractor, or agent in obtaining a new job as an educator or in a school, apart from the routine transmission of administrative and personnel files, if the educator knows or has probable cause to believe that such person engaged in sexual misconduct regarding a minor or student in violation of the law.

 DAWG BONE: PASS THE BUTTER. NOT THE TRASH.

 File this one under: EDUCATOR ETHICS

Dawg Bones

What are the free speech rights of a school board member?

At the recent TASA/TASB Convention my law partner, Karla Schultz, presented a session on this topic along with TASB attorney Mark Tilley. It was very interesting and informative.    Karla and Mark reminded me of a case from long ago that went to the Supreme Court during the tumultuous 1960s.  The case involved Julian Bond, who was elected to the Georgia House of Representatives in 1965.  Mr. Bond achieved fame prior to his election as the Communications Director of the Student Nonviolent Coordinating Committee (SNCC).  SNCC was a controversial organization at the time.

After his election, but before he was sworn into office, Mr. Bond gave a radio interview in which he expressed his views about the War in Vietnam and the draft.  Those views were decidedly left wing, and did not sit well with a majority of the members of the Georgia legislature. In fact, the House members voted 184-12 to refuse to allow Mr. Bond to take his seat in the House. Mr. Bond sued, claiming an infringement of his First Amendment rights.

He won.  The Supreme Court acknowledged that an elected official can be required to swear to support the state and federal constitutions.  But once Mr. Bond did that, it was improper for the other members of the legislature to question his sincerity.  Thus the Court held that Mr. Bond had not waived, forfeited or diminished his free speech rights by running for office. He could take his oath to support the constitution, and then take his seat. The case is Bond v. Floyd, decided by the U.S. Supreme Court in 1966. You can find it at 385 U.S. 116.

That same logic applies to school board members. School board members do have a right of free speech.  But as the presentation by Karla and Mark pointed out, school board members are restricted by other laws. Most prominently, the Texas Open Meetings Act limits board member speech in some ways, and board ethics limit them further.  Matters discussed in closed session, for example, are supposed to stay in closed session.

So it’s tricky, and a Dawg post is not the place to try to lay out all the complexities of this topic. Your board members do have a right of free speech. But be careful.  Seek legal advice when questions arise.  At Walsh Gallegos, we will be happy to help you.

DAWG BONE: THROWBACK THURSDAY GOES BACK TO THE 1960s!

 File this one under: BOARD GOVERNANCE

Dawg Bones

Rumors? Do we have to act on rumors???

Ever since the landmark case of Doe v. Taylor ISD, school officials have been on notice that there are certain kinds of rumors that should not be ignored.  Specifically, it is dangerous to ignore rumors that a school employee is sexually involved with a student.  The latest lesson along these lines is the very short, bare bones decision from the 5th Circuit in the case of Terry v. Kinney.

The issue before the court was the Motion to Dismiss filed by three school officials. The suit alleged that all three were supervisors of the teacher/coach who had plead guilty to having an “improper relationship” with a student.  The suit alleged that all three of these defendants were aware of what was going on, and responded with deliberate indifference.  The suit alleges that one of the three defendants “was told by [the student] herself about rumors that [the student] was pregnant with [the teacher/coach’s] child.”  Another defendant allegedly “knew of the multitude of rumors concerning….[the teacher/coach] having an improper sexual relationship.”  The suit further alleges that each of these two defendants “failed to take action in response to the rumors.”

This suit has a long way to go, but at this stage, the court held that there was enough for the case to go forward. The Motion to Dismiss was denied.  The plaintiff will have the opportunity to prove the truth of those allegations about the supervisors.

When I was a young lawyer, the conventional wisdom was that we did not take action with regard to rumors.  I think that continues to be good advice…about many kinds of rumors.  But when the rumors are about a sexual relationship involving a school employee and a student, a supervisor ignores rumors at his or her peril.  When you hear rumors about something like this, ask yourself: “if this turns out to be true, how serious is it?”

If the answer is: “very serious,” then go to work.  Track down those rumors. See if there is truth behind them.  Take action. Document what you are doing.

The case is Terry v. Kinney, decided by the 5th Circuit Court of Appeals on September 22, 2016.

DAWG BONE: RUMORS COME IN ALL SIZES AND SHAPES.  KNOW WHICH ONES MATTER.

 File this one under: LIABILITY

Dawg Bones

It’s Toolbox Tuesday!! The kid brought drugs to school. Are we supposed to write a BIP?

In The Toolbox we provide a full day training program outlining ten “tools” available to school personnel when dealing with challenging, disruptive, maybe even violent student behavior. One of the tools—Tool #5—authorizes the principal to order the removal of a student for up to 45 school days to an “interim alternative educational setting” (IAES). But this tool can only be used in “special circumstances.” There are three circumstances the law considers “special.” They are 1) possession or use of a dangerous weapon; 2) possession, use, sale or solicitation of a controlled substance; and 3) the infliction of a serious bodily injury. So when you tell me that a student has brought drugs to school, I start thinking about Tool #5. After due process is provided and the facts have been established, the principal can use Tool #5 to order a removal from the placement called for by the IEP to an IAES. Of course the principal can call in law enforcement also—we call that Tool #10.

But in the Toolbox Training we recommend that the principal should not limit herself to those two tools. Let’s think about Tool #1—the development of a BIP—a Behavior Intervention Plan. Members of each student’s ARD Committee are required to ask themselves at each annual ARD meeting if the student has behaviors that impede learning of the student or others. If the answer is “yes,” then the ARD Committee should proceed to consider what interventions, strategies and supports might be useful in addressing those behaviors. Often this leads to the development of a BIP.

This question must be asked at least once a year at the annual ARD meeting. But we think it should be asked at other times as well. That kid who brought drugs to school…what’s going to happen next? Did you call in law enforcement? Is he going to now have a criminal record? Would you describe the behavior of bringing drugs to school as “impeding” the learning of the student or others? I would.

So why not pull three tools out of the toolbox—Tool #5 for an immediate removal, Tool #10 to bring in law enforcement, and Tool #1 for consideration of how we can prevent this type of behavior in the future.

That’s the kind of thing we talk about in the Toolbox Training. I’m doing a Toolbox Training in Region 6 on December 6, and a few more scheduled in other ESCs for 2017 so far. If interested, let me hear from you.

DAWG BONE: MAYBE IT’S WISE TO CONSIDER A BIP MORE THAN ONCE A YEAR.

File this one under: SPECIAL EDUCATION DISCIPLINE

Dawg Bones

Happy Halloween!! Can Christmas be Far Behind?

Here’s hoping you get through this day with no scary clowns to deal with, and just some good natured fun in your school. Halloween marks the beginning of the “holiday season,” two months that seem to move a lot faster than the other ten. Thanksgiving is on the horizon and Christmas catalogs are already clogging the mailbox.

So we thought you might want to hear about the litigation going on over the annual CHRISTMAS SPECTACULAR presented each year by Concord High School in Elkhart, Indiana. This program is a holiday tradition going back to the 1970s when the high school marching band attended the Radio City Christmas Spectacular in New York.

I’m sure that the Radio City program is impressive, but those Yankees got nothin’ on these Hoosiers. Concord High produces a program that involves two string orchestras, a symphony orchestra, a concert band, two jazz bands, five choirs, and small chamber groups. That’s just the music. The program also includes dance teams and drama department players. Throw in the stage technicians and crew, and you have 600 of the high school’s 1700 students involved in this 90-minute production. I expect there is a partridge in a pear tree as well.

Until the litigious Doe family got involved, the program was exclusively about Christmas. Oh, there were secular songs, like Jingle Bells and White Christmas, but there was no mention of other faiths and their winter celebrations. Moreover, the program concluded with “The Story of Christmas” which included readings taken directly from the Gospels. This was accompanied by a live nativity scene, with students in costumes portraying Mary, Joseph, angels, shepherds and the three wise men.

The Doe family, supported by the Freedom from Religion Foundation, filed suit, seeking to force changes in the program for 2014. In response, the school immediately offered to make some changes. They dropped the Gospel readings, and added songs pertaining to Chanukah and Kwanzaa. These holidays, along with Christmas, would be introduced in the program with a short reading about the cultural significance of each holiday. But the nativity scene was still in the program. And the “Story of Christmas” portion was to last 20 minutes, compared to three or four minutes honoring the other traditions.

The federal district court in Indiana ruled that this did not go far enough. The court held that the program, as proposed by the school, would still amount to a governmental endorsement of religion, in violation of the First Amendment.

So the school made additional changes for the 2015 program. The Doe Family continued to object, but the court found the 2015 program to be significantly different from previous Christmas Spectaculars. Those differences were enough for the program to pass muster. Key Quote:

The portrayal of the nativity scene in the 2015 show was very different. As just noted, the nativity scene was on stage for less than two minutes. It did not span multiple performances, either, as it was only on stage for the conclusion of the show. The scene was also less elaborate than in previous years. Previous shows included almost twenty student actors as part of the living nativity scene. Mary and Joseph stood inside the stable behind a manger, with three students on each side dressed in white robes, depicting angels. Students dressed as the three wise men would then walk onto the stage and take their place in front of the nativity scene. In addition, multiple students were spread to the sides dressed as shepherds. The nativity scene that was actually presented in 2015, though, included only Mary, Joseph, and three wise men, each situated inside the stable set and depicted by mannequins instead of students.

When presented in that limited manner, the nativity scene did not stand out from any other portion of the show, during which almost every performance was accompanied by some sort of visual complement in order to make the show visually as well as musically pleasing and engaging.

We expect this is not the last we will hear about this case. Furthermore, it’s a reminder of the fine line public schools have to walk when celebrating holidays that have religious origins. Public schools are not expected to ignore the role of religion, or the religious roots of some of our holidays. But neither are they to endorse the majority view.

The case is Freedom from Religion Foundation v. Concord Community Schools, decided by the federal district court for the Northern Division of Indiana on September 14, 2016. We found it at 2016 WL 4798964.

DAWG BONE: TALK TO YOUR MUSIC AND DRAMA PEOPLE ABOUT THIS.

File this one under: RELIGION

Dawg Bones

Great News!!

Dear Dawg: You know I’ve been writing you every week to ask if we can fire our football coach. You keep urging caution.  Well….I have some wonderful news to share.

No, we did not win our game last week. Once again we were beaten, battered, blitzed and befuddled. We were pummeled, pounced on and pulverized. We were out-hustled, out-coached, out-played and most definitely out-scored.

But we got some great news. Our coach has accepted a new job.  He is to become the defensive coordinator for the Texas Longhorns.  The UT Sports Department acknowledged that our coach has not been very successful, but said that “if he can hold the other team below 50 points, we will consider it an improvement.”

I guess they are pretty desperate there at Bevo U.  Anyway, we’re delighted and will immediately launch an international search for our new coach. Will keep you posted.   YOUR FRIEND.

DEAR YOUR FRIEND:  Congratulations on the happy outcome.  But as a loyal alum of UT, I’m writing immediately to the University’s lawyers: can we fire this guy??????

DAWG BONE:  WE HEAR THAT MACK BROWN IS STILL AVAILABLE