All posts by Jim Walsh

Dawg Bones

But It Happened After School! Off Campus!!

Yesterday we told you about the 9th Circuit decision upholding school disciplinary action based on sexually harassing comments by a 7th grade boy. Today, we revisit that case and focus on the inconvenient fact that all of this happened off campus and after school.

School officials have more authority to regulate student expression that occurs during the school day and on campus than they do with things that occur elsewhere. In the 9th Circuit case, the sexual harassment occurred on a bike path that went through a park adjacent to the school. The parties to this case agreed that what happened here happened off campus. So how can the school justify suspending the student?

The court cited earlier cases that established two tests in “off campus” cases—the “nexus” test and the “foreseeability” test. As to nexus, the court noted that the harassment that took place on that bike path “was closely tied to the school.” First, only students were involved in this interaction. Second, the kids were in close proximity to the school, and it was literally just minutes after school let out. Third, there was no clear line of demarcation that said THIS IS SCHOOL PROPERTY and THIS IS NOT. In fact, school administrators routinely referred to the entire area as “the back field.” Key Quote:

….but it is clear that it was school itself that brought the children together on the path. Moreover, it is a reasonable exercise of the School District’s in loco parentis authority to be concerned with its students’ well being as they begin their homeward journey at the end of the school day.

As far as “foreseeability”:

Because the harassment happened in such close proximity to the school, administrators could reasonably expect the harassment’s effects to spill over into the school environment.

The ACLU represented the student in this case and made the familiar “slippery slope” argument. If school officials can discipline a student for off-campus behavior, just how far does this extend? The mall? The movie theater? The court did not lay out any hard and fast rule about this, noting that “Our decision is necessarily restricted to the unique facts presented by this case.” Good common sense will have to inform decisions in the future. The court noted that “A school may act to ensure students are able to leave the school safely without implicating the rights of students to speak freely in the broader community.”

This is an important decision supporting school district authority from a court that is generally considered the most liberal of our circuit courts. So how bout that! The case is C.R. v. Eugene School District 4J, decided by the 9th Circuit on September 1, 2016.

DAWG BONE: “IN LOCO PARENTIS” IS STILL ALIVE!

File this one under: STUDENT DISCIPLINE

Tomorrow: Still trying to fire the coach…

Dawg Bones

The SECOND Part of the Tinker Test Comes Alive

Readers of this blog are probably familiar with the basic outline of the “Tinker Test.”  Tinker v. Des Moines is the landmark SCOTUS case establishing that students have a right to free expression during the school day.  The Tinker Test is usually framed in terms of “material and substantial disruption.” That is, the student can express herself freely; but school officials can infringe on that right if they can reasonably forecast a “material and substantial” disruption.

There has always been a second part to the Tinker Test, but it has gotten very little attention.  Since courts have rarely cited it, administrators and lawyers tend to forget it. But now we have an important decision from the 9th Circuit that revives the second part of the Tinker Test. In upholding school disciplinary action, the court specifically relied on the second part of the Tinker Test.

The second part of the Tinker Test allows school officials to take action if student expression collides with “the rights of other students to be secure and to be let alone.”  Notice that this test does not require a major disruption of school activities. It only requires evidence of an interference with the rights of other students.

The 9th Circuit case involved 7th grade boys acting badly.  Just minutes after school let out, on a path that went through a park adjacent to school property, three boys surrounded a 6th grade boy and girl who were walking home.  The boys gave the younger students fake vulgar names, asked them if they were dating, asked them if they watched pornography, and made sexually suggestive and vulgar comments.  The 6th grade girl reported that she was very uncomfortable with this. Both of the 6th graders were identified in the court case as having disabilities, but that did not figure in the decision.

School officials heard about what had happened after school that day, investigated, charged one of the boys with sexual harassment and suspended him from school for two days.  The ACLU jumped in with a First Amendment lawsuit.

There were two key issues here. Today, we will address the Tinker Test issue.  Check out tomorrow’s Daily Dawg for a commentary on the “on school/off school property” issue.

As to the Tinker Test, the court noted that the comments of the 7th grade boys were properly classified by the school as “sexual harassment,” which the court distinguished from speech that is “merely offensive.”  The court observed that sexual harassing speech “implicates the rights of students to be secure.” It threatens a person’s “sense of physical, as well as emotional and psychological security.”   The age of the students was a relevant factor here as well.  The court noted that “when it comes to sexual harassment, grade schools may exercise a greater degree of control over student speech than colleges.”

So the comments of the boys were not protected as free speech.  But what about the fact that all of this happened after school, and off school property?  We’ll turn our attention to that tomorrow.

The case is C.R. v. Eugene School District 4J, decided by the 9th Circuit Court of Appeals on September 1, 2016.

DAWG BONE: I WONDER IF THE ACLU GETS TIRED OF REPRESENTING FOUL MOUTHED ADOLESCENTS.

File this one under: STUDENT DISCIPLINE

Tomorrow: Can the school exercise jurisdiction beyond its boundaries?

Dawg Bones

It’s Toolbox Tuesday!! How Do the Tools Align with Restorative Practices?

We highlight The Toolbox around here on Tuesdays. The Toolbox is a one day training program for campus administrators and special education staff addressing challenging behaviors presented by students with disabilities. Today, we have a few things to say about the interplay between the “tools” in The Toolbox and the “Restorative Practices” that many districts are adopting.

There is no conflict between the two. The tools in The Toolbox are based on the legal options that federal and state law make available. The use of Restorative Practices does not remove any of those tools. Districts that are moving toward a restorative approach still make use of short term suspensions, DAEP placements, etc. They use these tools less frequently. After all, that’s one of the main benefits of the Restorative approach. But these tools are all still available.

The Dawg is a strong proponent of Restorative Practices. We encourage schools to move away from exclusionary forms of discipline toward the inclusive, relationship-based model that is encouraged through student “circles,” “respect agreements” and other Restorative Practices. So we see no reason why schools cannot move toward Restorative Practices while also making sure that school officials understand their options as set out in The Toolbox.

If you are interested in a Toolbox Training, let me hear from you. I promise to make a pitch for Restorative Practices in your district at the same time.

DAWG BONE: TOOLBOX. RESTORATIVE. NO CONFLICT.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: 9th Circuit revives the second part of the Tinker Test.

Dawg Bones

Prayer at Board Meetings: Another Opportunity for the 5th Circuit

The 5th Circuit has not given us a definitive ruling on the issue of prayer at school board meetings. However, they now have the opportunity to do so. The issue arose in Birdville ISD where the American Humanist Association challenged the practice. The federal district court ruled in favor of the school district and the case is now on appeal to the 5th Circuit.

The district court judge observed that the “determinative issue” was whether school board meetings were more akin to legislative sessions, or to high school graduations. In support of that line of thinking, the court noted earlier Supreme Court decisions that have held that prayer at the start of a legislative session is constitutional, whereas prayer at a graduation ceremony is generally not. In the Birdville case the court said:

The court is persuaded, as in Tangipahoa, [an earlier district court decision from Louisiana] that a school board is more like a legislature than a school classroom or event. Thus, the mere fact that school board meetings may open with a prayer does not violate the Establishment Clause. However, use of such prayers to exploit or proselytize Christianity is improper.

Stay tuned for this one. The decision of the 5th Circuit will give us a binding legal precedent concerning this very common practice.

The case is American Humanist Association v. Birdville ISD, decided by Judge John McBryde of the Northern District of Texas on August 1, 2016.

DAWG BONE: YOU ARE WELCOME TO PRAY FOR THE OUTCOME YOU WOULD LIKE.

File this one under: RELIGION

Tomorrow is Toolbox Tuesday! Stay Tuned!!

Dawg Bones

Dear Dawg: We are now 0-4. Can we fire the coach NOW????

Dear Dawg: You keep telling us to CHILL about our miserable football season, but I’m here to tell you we are mad as hell and are not going to take it much longer.  Last Friday looked promising until the coach made the asinine decision to go for it on 4th down and three. Did not work. The other guys got the ball and scored the winning touchdown.

We have heard that parents are planning to show up tonight holding signs that read:

CLOUDY EYES….EMPTY HEARTS…..CAN’T WIN. 

THIS GUY IS NO COACH TAYLOR

What do we do, Dawg????  MAD AS HELL.

DEAR MAD AS HELL:  We are sorry for your loss.  Our advice remains the same. CHILL.

DAWG BONE: THERE IS ONLY ONE COACH TAYLOR

Dawg Bones

The Wayback Machine: Board Fires the Superintendent. Is the Board “Incompetent”?

This is the second of two Wayback Machine entries this week. We’re doing this in anticipation of this weekend’s TASA/TASB Convention. We thought you’d be interested in old cases involving trustee removal.

Today we’re talking about the resolution adopted by the board in Nederland ISD on June 19, 1972. The resolution gave the superintendent, Emmett McKenzie, the opportunity to accept his termination in exchange for $20,000, which was the balance on his contract. The superintendent took the deal, but many members of the community were not happy about this. In the lawsuit, they noted that the majority of the board did not give any reasons for dumping the superintendent. They argued that this demonstrated incompetence.

The court’s opinion tells us that the superintendent had been a point of contention in NISD for some time. In a recent election, the anti-superintendents had taken over the majority on the board from the pro-superintendents. Shortly thereafter, Mr. McKenzie was gone.

(We know what some of you are thinking: plus ça change, plus c'est la même chose).

The jury sided with the pro-superintendent people, concluding that the board members were incompetent and should be removed from office. But on appeal, the decision was reversed. The court pointed out that there was nothing in the law that required the board to explain why they chose to buy out the superintendent. This was long before we had a Term Contract Nonrenewal Act, or Chapter 21 proceedings. Here, the court held that the board’s decision may have been unwise, but it was not illegal:

When public officials manifestly violate their duty, courts must have the courage to remove them or negate their actions. But where in a discretionary decision, such as here, the most that can be said is that perhaps poor judgment was used; for the courts to fly in and substitute their judgment for that of elected officials would be to undermine the very foundation of our political system.

The court concluded that the remedy of the plaintiffs in this case was “political, not judicial.”

The case is Harper v. Taylor, decided by the Court of Civil Appeals in Beaumont on January 11, 1973. You can find it at 490 S.W.2d 227.

DAWG BONE: JOIN US AT THE WALSH GALLEGOS RECEPTION ON FRIDAY AT 5:00. SAMBUCA. WE’LL TALK OVER THESE OLD CASES!

File this one under: GOVERNANCE

Tomorrow: Oh No! We are 0-4!! Can we fire the coach?

Dawg Bones

The Wayback Machine: Trustees Ousted for Keeping Taxes Too Low

With the TASA/TASB Convention about to open, we thought it would be interesting to enter the Wayback Machine and look at two long ago cases where legal efforts were made to remove school board members from the board. In both cases a jury found the board members incompetent and worthy of dismissal. One case was about school finance. The other was about firing the superintendent. We will review one today and the other tomorrow.

Today’s case arose in Aldine ISD in 1959, and it was all about the tax rate. The Harris County Attorney charged three Aldine ISD board members with incompetence and official misconduct when they voted for a tax rate they knew would be insufficient for the operation of the school for the upcoming year. The charge was that the board had adopted a budget that required a tax rate of $1.59 and then these three voted for a tax rate of $1.35, knowing full well that the district had no means of making up the difference.

The case went to a jury which ruled against the three trustees. The court then tossed the three off the board and the Court of Appeals affirmed that ruling. Wow! In light of the anti-tax sentiment that is so prevalent today, we thought the following quotes from the court’s opinion were noteworthy:

In fact, it appears to this Court that respondents [the three board members] wholly disregarded the advice that they had received with reference to what was necessary for the operation of the school, and did nothing to avert the threatened and impending bankruptcy of the school district which resulted in the closing of the school before the school term was out.

As we understand our school laws and the statutory duties of the Trustees of our school districts it occurs to us that the failure of [the three board members] as above indicated and found by the jury is and was an outright violation of their clearly defined statutory duty.

The Dawg found it interesting that the three guilty board members turned to a convenient scapegoat—the attorney--who advised them to do what they did. The court was not impressed:

Under the undisputed factual situation here the duty of the respondents was crystal clear with or without legal advice.

The case is Tautenhahn v. State, decided by the Court of Civil Appeals in Waco on March 31, 1960. You can find it at 334 S.W.2d 574.

DAWG BONE: IT’S CRYSTAL CLEAR THAT SCHOOL BOARD MEMBERS—NOT TO MENTION THE TEXAS LEGISLATURE—MUST MAKE ADEQUATE FUNDING AVAILABLE.

File this one under: GOVERNANCE

Tomorrow: Trustees ousted for the way they ditched the superintendent.

Dawg Bones

It’s Toolbox Tuesday!! Let’s Go Over the Basics of DAEP Again

We like to talk about the Toolbox on Tuesdays here at the Daily Dawg. The Toolbox is a full day training program highlighting ten “tools” that schools can use to serve each student appropriately while providing safety for all. In the Toolbox training we go over the tools and then have some hypotheticals to practice with. Since the focus is on disciplinary options, we spend a lot of time talking about DAEP. So let’s review the basics about that.

Sending a student with a disability to a DAEP is a two-step process. First, the student must be afforded the same kind of procedures that would be provided to a non-disabled student. In a nutshell, this must include notice of what the student is charged with, and an opportunity to tell his/her side of the story. This first step is normally carried out by campus administrators who conduct a hearing, or at least an informal conference with the student. The role of the campus administrator is to determine whether or not the student violated the Code of Conduct, and, if so, to assess a disciplinary penalty in accordance with the Code. If the penalty is a DAEP assignment of more than 10 consecutive days, you have a “change of placement.” Proceed to step two.

Step two is the ARD Committee meeting. The ARDC has two functions. First, it must make a manifestation determination. The general rule is that DAEP is a punitive measure that cannot be done if the behavior is a manifestation of disability. There are exceptions, which we address in the Toolbox Training. The second responsibility of the ARDC is to make sure that the DAEP will “enable the child to continue to participate in the general curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.” 34 CFR 300.530(d)(1)(i).

If the DAEP as it normally operates will not satisfy that standard, then the ARDC should make appropriate adjustments and tweaks. If that’s not possible, the ARDC needs to figure out something else to do. The federal law says that it is the province of the ARDC to choose the “interim alternative educational setting” (IAES) where the student will be served. In most districts and in most cases the DAEP is an appropriate IAES. But if the DAEP is incapable of meeting the student’s needs, something else must be done. Some other IAES must be selected, or created.

It’s complicated. That’s why we offer a full day of training on The Toolbox. Let me know if you are interested.

DAWG BONE: THE DAEP IS AN IAES IF THE ARDC SAYS OK.

File this one under: SPECIAL EDUCATION DISCIPLINE

Tomorrow: Can a politician be ousted for keeping taxes too low? In Texas????

Dawg Bones

Number in Special Ed Going Down: What’s Going On????

On Sunday, September 11th, the Houston Chronicle published a major piece of investigative journalism. The main point of the piece was the assertion that Texas is intentionally and systematically denying special education services to students who need them.  The numbers over the past several years do show a dramatic drop in students served via special education.  The Chronicle puts the blame squarely on T.E.A.  But the Chronicle failed to note the role that Congress has played in this.  Texas did set out to lower the number of children served in special education…but that was because Congress called for states and school districts to do exactly that.

In its 2004 re-write of the Individuals with Disabilities Education Act (IDEA) Congress stated that one of its purposes was “to reduce the need to label children as disabled in order to address the learning and behavioral needs of such children.”  In other words, Congress wanted to see schools provide better services to kids before they put them in the special education program.  In particular, the concern was that many kids were being labeled as “special ed” and given a disability label, when in fact, their learning problems were attributable to a lack of proper instruction.   To put this intention into practice, Congress stated that a child could not be placed in a special education program if the “determinant factor” for that designation was “A) lack of appropriate instruction in reading….B) lack of instruction in math; or C) limited English proficiency.”

In response to that Congressional mandate, the Department of Education enacted regulations that require special procedures prior to identifying a child as having a Specific Learning Disability (SLD). SLD is the largest single category of students with disabilities, encompassing close to half of those identified.  Thus the SLD group was a particular target of the Congressional effort to reduce the number of students receiving special education services.    The regulations that went into effect in 2006 require schools to go through a process prior to referring a child for an evaluation for an SLD.  That process is what we now call RTI—Response to Intervention.

Contrary to the Chronicle’s article, RTI is required, at least with regard to a possible SLD.   RTI is designed to slow down the path to special education. However, it is not intended to stand in the way of student achievement, and if that is how it is used, then it is not being implemented properly.

The other Congressional concern was the overrepresentation of racial minorities and English language learners in our special education programs.  To address those concerns, Congress required states to develop a plan “designed to prevent the inappropriate overidentification or disproportionate representation by race and ethnicity” in special education programs. So any school district that had a “disproportionality” problem was under pressure to reduce the numbers of African-American, Hispanic or English language learning children in the special education program.

Numbers in special education are down due to multiple factors. No doubt, the pressure that T.E.A. applies to get districts down to the 8.5% figure is a factor. But so is the effective use of RTI whereby struggling learners are making real progress without “special education.”   And all of this is attributable to the federal government.  Congress continues to make the call in special education, despite not paying the bulk of the price.

DAWG BONE: THERE ARE MULTIPLE REASONS FOR THE DECLINE IN SPECIAL EDUCATION STUDENTS IN TEXAS

Tomorrow: Toolbox Tuesday!! We talk about DAEP.

Dawg Bones

Dear Dawg: Now We Are 0-3! Can We Fire the Coach NOW????

DEAR DAWG: Last week we asked if we would be on safe legal ground in firing our coach after we lost the first two games. You said that this was not even a “scintilla” of evidence sufficient to do the job. I don’t see what scintillas have to do with it. Scintillas are native to our part of Texas and we are very fond of the furry little critters. So I think you should leave the small animals out of this discussion.

As far as the coach, you should know that we are now 0-3! Will that do? We’re getting embarrassed over here. Can we fire him now? WE HEAR THAT MACK BROWN MAY BE AVAILABLE. ART BRILES?

DEAR WE HEAR: Slow down, buddy. We’re getting the picture. Football is apparently pretty important if you are interested in canning the coach before the season is half over and bringing in a high priced college coach. But our legal advice remains the same. CHILL. And good luck tonight.

DAWG BONE: 0-3 DOTH NOT A SEASON MAKE.