All posts by Jim Walsh

Dawg Bones

What Did the Superintendent Know, and When Did She Know It?

Kristi Dearman alleged that she lost her job because she backed the wrong candidate in the superintendent election in Mississippi.  They elect their superintendents in the Magnolia State.  And after Ms. Dearman’s candidate lost, the new superintendent reassigned Ms. Dearman to a different school.  However, her job remained the same—she was a guidance counselor.

Over a year later, the superintendent recommended Ms. Dearman’s termination due to alleged FERPA violations.  Ms. Dearman requested and was granted a hearing before the school board at which she defended herself and argued against the termination.  The board then pulled a switcheroo.  They never voted on the proposed termination, and in fact, they withdrew the recommendation for termination.  They decided to nonrenew the contract instead.

Of course, that still left Ms. Dearman unemployed, so she sued the district alleging that all of this was in retaliation for her exercise of her constitutional rights to back the wrong candidate in the election.  The 5th Circuit ruled against her. The main problem was the lack of evidence that the superintendent even knew that Ms. Dearman had backed the other guy.  Here is the critical Q and A from Ms. Dearman’s deposition:

Q. Do you have any facts to—to make you believe that Gwen Miller [the new superintendent] knew that you supported Jim Nightengale [for superintendent]?

A. No.

In a retaliation case the plaintiff has to show causation.  You have to prove that you exercised your rights and your boss punished you for it.  If your boss did not even know about your exercise of your rights, you will have a very hard time making that causal link.

The case is Dearman v. Stone County School District, decided by the 5th Circuit Court of Appeals on August 11, 2016. We found it at 2016 WL 4254373.

DAWG BONE: IGNORANCE MAY INDEED BE BLISS

 File this one under: RETALIATION

Dawg Bones

Three Lessons from a Nonrenewal Case

There are three things we can learn from a recent decision of the Commissioner in a nonrenewal case.

First, the teacher’s attorney has to point out specific mistakes in the board’s decision by citing to the local record along with legal authority. Here’s how the Commissioner put it:

It is not the job or the role of the Commissioner to review the local record and legal authority to determine if at any point an improper decision was made.  Nor is it the job of opposing counsel to guess what argument Petitioner is making. It is the job of the petitioner to demonstrate that a school district’s decision is incorrect by showing where in the record an error occurred and by citing authority to show such error requires reversal of the board’s decision.

Second, when the school board hears the case the rules about “hearsay” do not apply, unless the board’s rules require that they do.  This is one way in which hearings before the school board differ from a hearing before an independent hearing examiner. In the independent hearing system, the Texas Rules of Evidence apply, including the hearsay rules.

Third, if the district’s lawyer files a brief that points out the evidence in the record that supports the board’s decision, the teacher’s lawyer needs to respond to that. Here, there was no response to the district’s brief, and the Commissioner again noted what he is not willing to do: “It is not the Commissioner’s job to make Petitioner’s arguments for her.”

Nonrenewal of the principal’s contract was supported by substantial evidence, and thus, the decision was upheld by the Commissioner.  The case is Ross v. Judson ISD, Docket No. 052-R1-06-2016, decided by the Commissioner on August 15, 2016.

DAWG BONE: NOT EASY TO OVERTURN A BOARD’S NONRENEWAL DECISION

 File this one under: LABOR AND EMPLOYMENT

Dawg Bones

It’s Toolbox Tuesday!! What About Other Changes of Placement?

A question came up at Region 6 when I was doing a Toolbox Training recently.  The question was: do these “tools” have any application to non-disciplinary situations?  They do!  Specifically, Tool #2 and Tool #3 can be applied outside of the disciplinary context.

Let me explain.  The Toolbox consists of ten “tools” designed to assist schools to serve students appropriately while maintaining safety and a healthy school environment.  The main focus of The Toolbox is to help you serve the particularly violent or seriously disruptive student.  Two of the tools involve an educational change of placement. Tool #2 involves a change to a more restrictive environment, done with full parental agreement. Tool #3 is also an educational change of placement, but this time done the hard way—without parental agreement.

Those two tools can also be used in cases that have nothing to do with discipline or improper behavior.  After all, they are both educational changes of placement, designed to improve educational services to the student.

Consider Melissa, a 4th grader with an intellectual disability. Suppose that you began the year by serving Melissa in the mainstream, general education classroom all day.  The teacher implemented some classroom accommodations, and the inclusion teacher came by for 30 minutes a day.  But now it is late October, and the staff has reported that the arrangement is not working very well. Melissa is as sweet as they come, a soft spoken, polite and quiet child who never causes a disruption in the classroom. But she is just a lot lower in her functioning than we realized. We fear that she is not learning anything in this classroom, and needs a lot more focused attention to make meaningful educational progress.

You could consider a change of placement for educational reasons. In fact, you should consider doing something different. If she is not making progress, it’s time to do something.  You could, of course, find ways to beef up services to her in the mainstream setting. In fact, that is the preferred option. But there are other options.  You could propose a change to a more focused, more intensive, and more restrictive environment.  If you get parental approval of this change of placement, we call that Tool #2. If you proceed forward with your plan even when the parent disagrees with you, that is Tool #3.

If you want to know more about The Toolbox, let me know.  It’s a one-day program designed for campus administrators and special ed staff together.  Have Toolbox. Will Travel.

DAWG BONE: CHANGING PLACEMENT IS NOT ALWAYS ABOUT BEHAVIOR

 File this one under: SPECIAL EDUCATION

Dawg Bones

School District Employee Commits No Crime When He Has Sex with a Student

We’re guessing that the legislature might want to take a fresh look at our laws pertaining to school employees having sex with a student.

An employee of the Conroe ISD was convicted by a jury of violating the Penal Code provision regarding “Improper Relationship Between Educator and Student.”  “Improper Relationship” is a nice, polite euphemism. I think we all know what it refers to.  The jury found the man guilty, but  the Court of Criminal Appeals unanimously reversed that conviction.  Why?  Because the man worked in central office rather than at the high school the student attended, and the man was not a certified educator.  What’s this about?

The statute makes it a crime to have to have sexual contact with a student if you are “an employee of a public or private primary or secondary school.”  This guy was an employee of the Conroe ISD, but not an employee of Clear Creek High School, the “secondary school” where the student attended.  He worked in Conroe ISD police department. Thus he was an employee of the district—but not of the “school.”

Does that sound like a hair-splitting distinction?  The Court did not think so:

The State argues that, although Section 21.12(a)(1) does not state that it applies to a school district employee—which appellant was—it is clear that was the intent of the Legislature. While it is true that employees of a school are generally also considered to be employees of the school district overseeing that school, the inverse may or may not be true, depending on the facts of the case.  We are not persuaded that the Legislature intended section 21.12(a)(1) to apply to appellant under this set of facts. Had he been assigned to Clear Creek High School or to its feeder system, his status as an employee of the school would have been a closer call.  But as an employee of the CISD Police Department, assigned to a feeder system that did not encompass CCHS, we conclude that the evidence was legally insufficient to support the jury’s verdict that appellant was an employee of CCHS.   

 By that logic, employees in the central office—like the superintendent—could have a sexual relationship with a student and not be convicted of a crime because they are not working at or employed by “the school.”   It’s not quite that simple, however. There is another section of this law which would definitely apply to the superintendent.  Section 21.12(a)(2) makes it a crime for a certified educator to have a sexual relationship with a student who attends any school in the district where the employee works. So our hypothetical superintendent would be committing a crime by having a sexual encounter with any student in the district.

But what about the business manager? What about the transportation director?  If they are not certified educators and are not required to hold a license issued by the state, as with a nurse, school psychologist, OT, PT, etc., these criminal statutes do not apply.

So what we have in the Conroe case is a person employed by the district’s police department who had sex with a student in the district, but has not committed a crime by doing so. He was not a certified educator, did not have to have one of the state licenses covered by the statute, and he was not an employee of the high school where the student attended.

Someone could probably make a few bucks developing a laminated chart explaining exactly what employees can have sex with which students, and whether the consequences would involve termination of employment, revocation of certificate, criminal conviction, or extended time in purgatory. The Dawg is not going to do that, but we’re just pointing out that this is becoming as complicated as our nepotism laws.

The case is State of Texas v. Sutton, decided by the Texas Court of Criminal Appeals on September 14, 2016. We found it at 2016 WL 4793141.

DAWG BONE: AND BELIEVE ME, THE NEPOTISM LAWS ARE COMPLICATED

 File this one under: CRIMINAL LAW

Dawg Bones

We’re getting concerned about our band…

Dear Dawg: It will not surprise you to hear that our so-called football team is now 0-8.   Last week was a montage of dropped passes, missed tackles, stupid penalties and ridiculous coaching decisions.  I’ve written to you every week about this and you keep telling me that we should not fire the coach over this.

But what about the band director?  The halftime show featured songs about losing.  We heard the Beatles’ “I’m a Loser.” That was followed by Roy Orbison’s “Crying.”  Then it was “Poor Poor Pitiful Me.”  They concluded the show by forming an L and marching off the field playing our school fight song at half-tempo, like a dirge.

The band director claims that this had nothing to do with our football team, but that’s not how the folks in the stands saw it. Some of thought it was amusing, but others were irate at the lack of support for our players.   Everybody got the connection with our losing football team.

Can we direct the band director to be more supportive?  I’m no musician, but I know what I like.  Our team is atrocious this year but I blame that on the coach. The kids are trying hard and deserve our support.  MIFFED.

DEAR MIFFED:  We’re happy to AT LAST be able to give you the advice that you want. YES—you can tell the band director to change his tune.  The Supreme Court decided long ago that the school retains a great deal of editorial control over school sponsored publications. The case before the Court involved a student newspaper, but the logic of that decision extends to anything that appears to carry the school’s approval. This would certainly include the halftime performance of the band.

Tell the band director to do the right thing and support your losing football team.

DAWG BONE: SCHOOL SPONSORED PUBLICATIONS CAN BE EDITED BASED ON ANY LEGITIMATE PEDAGOGICAL CONCERNS. 

File this one under: FREE SPEECH

Dawg Bones

Strip Search of 22 Middle School Girls. How Do You Think This Story Will End???

According to the lawsuit, there were 22 middle school girls who were subjected to a “strip search” as school officials looked for another student’s money that had gone missing.  The suit alleges that the girls were “checked around the waistband of their panties and under their shirts. They also had to loosen their bras and lift their shirts, which exposed them from the shoulder to the waist.”  The suit was filed against the Houston ISD on behalf of two of the girls.

The court dismissed it.  I’m guessing that this may surprise some of you. But this is yet another example of how difficult it is to pin legal liability on a school district for the questionable decisions made by its employees.  This was a suit against the employer—not the employee who ordered the strip search.  In suits against a private business, the courts embrace the legal theory of respondeat superior,  a Latin phrase that is roughly translated as “that truck driver that ran into you makes $32,000 a year—let Wal-Mart pay for the damages.”  So in private business, the employer is usually legally liable when an employee does something wrong.  Not so with governmental entities.

The Supreme Court decided long ago that governmental entities could not be held liable for violations of federal law under the respondeat superior theory.  Therefore, Houston ISD is not going to be held liable when one of its employees violates a student’s constitutional rights.  You have to prove that the official policy of Houston ISD was the direct cause of your injury.

That’s hard to do.  In this case, the court quoted the HISD official policy about searches and seizures.  Guess what: It does not authorize mass strip searches of adolescent girls while pursuing a small amount of money. Of course, it does not prohibit them either, which is a point that the plaintiffs made.  But the policy basically regurgitates the federal standards for searching kids in a public school—standards that have been approved by the U.S. Supreme Court.  Good enough.

The plaintiffs also tried to show that there was a widespread, common practice of illegal searches that the school board should have known about. The plaintiffs claimed that they found evidence of 23—23!!—strip searches. That was a tad misleading.  Twenty-two of those were the 22 girls searched in this one episode. So there was no evidence of the type of widespread, persistent, well known custom that could be attributable to the school board.

The case is Littell v. Houston ISD, decided by the federal court for the Southern District of Texas on September 30, 2016. We found it at 2016 WL 5661702.

DAWG BONE: DON’T TAKE THIS TO MEAN THAT IT’S A GOOD IDEA TO STRIP SEARCH 22 STUDENTS. 

 File this one under: LIABILITY

Tomorrow: Our team loses again. Sigh.

Dawg Bones

Too Familiar Story: Teacher Has Sex with Student. Lawsuit.

Let’s consider the possible consequences that may result when a teacher has sex with a student.  I can quickly think of at least five:

1. The teacher might be fired.

2. The teacher’s certificate might be revoked.

3. The teacher may be prosecuted for a crime.

4. The teacher may face a civil lawsuit.

5. The school district may face a civil lawsuit.

We don’t know all of what happened to teacher Willie Moorhead after his alleged sexual encounter with a fourteen-year old student.  Maybe he was fired.  Maybe he is no longer a certified teacher in Mississippi.  Maybe he was prosecuted.  But we do know that he was sued in federal court, and so was the school district.

The court dismissed the case against the school district for multiple reasons. Obviously, the school’s official policy frowned on any inappropriate activity between teachers and the kids, so the plaintiff had to make the case that the district “tolerated a pattern of sexual misconduct between teachers and students that was so well-settled that it constituted a custom that fairly represented [district] policy.”  The allegation was that the district was too lenient on offending teachers, which led to a pattern of abuse.

The evidence fell short of that, and thus the case was dismissed. The testimony of the HR Director was supportive of the district’s position that it investigated incidents, and took appropriate actions.

The parent sued Mr. Moorhead also, and the court tells us that Mr. Moorehead never responded to the suit. Not responding to a suit is a very dangerous thing to do. Your lawyer would never recommend that.  The court invited the plaintiff to seek a default judgment promptly.

The case is Floyd-Evans v. Moorehead, decided by the federal court for the Southern District of Mississippi on September 26, 2016. We found it at 2016 WL 5374148.

DAWG BONE: FAMILIAR LESSON: INVESTIGATE; TAKE APPROPRIATE ACTION; DOCUMENT.

File this one under: LIABILITY

Tomorrow: a strip search of 22 middle school girls. Yikes!

Dawg Bones

It’s Toolbox Tuesday!! When is it time to change placement?

On Tuesdays we like to highlight the Toolbox—a full day training program focusing on students with disabilities and the options available to educators in addressing disruptive or violent misconduct.  We call it the Toolbox because we provide ten “tools” that administrators can employ. Two of those tools involve an educational “change of placement.”

This is the type of thing that might come up at about this time of year.  Suppose that Rebecca began the year in a general education, mainstream setting.  The ARD Committee was confident that Rebecca’s serious emotional disturbance would not lead to any serious problems in that setting.   There was a teacher’s aide in the classroom, and the inclusion teacher came in regularly to provide support.

But now that we are in mid-October we can see that things are not going as well as expected.  Rebecca has been sent to the office numerous times. The teacher has faithfully implemented the IEP and the BIP, but Rebecca’s behavior is not improving.  The teacher is frustrated and convinced that Rebecca’s behavior is problematic for the entire class.  If a general education student engaged in the same behavior the district would assign the student to the DAEP for a while as a disciplinary consequence. But everyone acknowledges that Rebecca’s behavior is a manifestation of her disability.  What to do?

The Toolbox provides two “tools” that might be appropriate in this situation. We call them both “educational” changes of placement. Tool #2 is an educational change of placement with parental agreement. So if Rebecca’s parents are in agreement with the other members of the ARD Committee that a change of placement is appropriate, the ARD Committee can make that change.  Tool #3 is an educational change of placement without parental agreement.

Would Tool #3 be appropriate in this case?  We don’t have enough information to answer that question. But we know that before the district uses either of these tools, it should first use Tool #1—reviewing and revising the student’s BIP.   The goal is to keep the student in the least restrictive environment—the general education classroom—if at all possible. Are there other supplementary aids and services we can use?  Should we update our evaluation information about Rebecca, possibly conducting a new Functional Behavioral Assessment?    We made Tool #1 the first tool in the Toolbox for a reason. It’s the most important and the most useful of the tools.

I hope that gives you a general idea of how the Toolbox training works.  If interested in this, let me hear from you!

DAWG BONE: DON’T BE TOO QUICK TO CALL FOR A CHANGE OF PLACEMENT.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Another “sex with student” lawsuit.

Dawg Bones

Parents Accuse District of Medicaid Fraud

Sometimes a dispute over special education can blow up into something bigger.  That’s what happened in Houston ISD, culminating in a lawsuit alleging that the district was falsifying claims to Medicaid, thereby engaging in fraud.  Parents of students with disabilities alleged in the suit that the district was tailoring special education services in a way designed to maximize Medicaid billing, thereby defrauding the government.

The court tossed the suit out, dismissing it “with prejudice.” This means the plaintiffs do not have the opportunity to amend their complaint and try again.  The problem, according to the court, was that the plaintiffs did not provide enough specifics in their suit. This was a False Claims Act case (FCA), which is a whistleblower-type statute. Under the FCA a citizen who reports fraud by a government contractor, such as a school district, can file a private lawsuit.  If successful, the plaintiff can recover a portion of any money damages awarded by the court.

The FCA requires the plaintiff to be very specific about what kind of fraud was committed, who did it, how they did it, and when they did it. In this case, the plaintiffs did not name anyone specifically, provided only a broad range of dates, and failed to provide specifics as to what fraudulent Medicaid bills were submitted.  Thus the case was dismissed.

Nevertheless, this is a good reminder of the importance of careful practices with regard to Medicaid billing. This will not be the last time a district is accused of defrauding the federal government. The case is Gregory G. v. Houston ISD, decided by the federal court for the Southern District of Texas on September 30, 2016.  You can find it at 2016 WL 5661701.

DAWG BONE: MAKE SURE YOUR MEDICAID BILLING PRACTICES ARE IN FULL COMPLIANCE WITH THE LAW.

File this one under: LIABILITY

Tomorrow: Toolbox Tuesday!!

Dawg Bones

Guess what, Dawg? We are 0-7. Can we fire the coach NOW????

I’m not sure why you keep asking if you can fire the coach. Of course you can fire the coach.  A lawyer can never stand in the way of you doing what you want to do. It’s just that we feel that it’s important that we point out that certain actions carry risk.  Firing a coach solely because of a losing record happens routinely in pro and college football.  In high school, there are risks. Coaches are also teachers and they have contracts.  Termination of contract is a big deal, requiring proof of good cause. Nonrenewing the contract at the end of the year is a bit easier, but even then you need some evidence other than the losing record.

Maybe there are other reasons for your team losing every game. Did you ever think of that?  Maybe there are no good football players in your town.  Maybe Knute Rockne, Vince Lombardi, Tom Landry and Erik Taylor would all flop in your school because nobody is very good at football.

We don’t know. We’re just hear to remind you that these things can be risky.  Good luck tonight.

DAWG BONE: THIS GUY IS GETTING TIRESOME.  WHEN DOES BASKETBALL SEASON START?