All posts by Jim Walsh

Dawg Bones

It’s Toolbox Tuesday! Let’s take a look at a case involving cartoons. Yes—cartoons.

On Tuesdays around here we highlight the Toolbox—a full day training program focusing on disciplinary options in dealing with students with disabilities.  Today: a case from Massachusetts involving a very bright student who showed promise as a cartoonist. The problem in the eyes of the school administrators was that so many of the cartoons depicted violence aimed at the school.

The case ended up in litigation involving several issues.  The parents eventually put the student in a private, sectarian school that did not provide special education services at all.  The parents were quite happy with this placement, and even declared to the school that the student “did not need special education at all.”  This was surprising in light of the fact that the high school student had been receiving special education services since first grade.  Even more surprising, the parents sought tuition reimbursement.  Hmmm. They want to be reimbursed for special education services at a school that did not provide such services and for a student that no longer needed them. Sharp readers (recent surveys show this term applies to 97.1% of Daily Dawg subscribers) will quickly surmise that the parents are not going to succeed with that argument.   And they did not.  The court held that the public school did not have to pay for the private placement.

That part of the case is a routine tuition reimbursement case.  But the parents raised other arguments, and that’s’ what makes this case Dawg-worthy.  The parents alleged that by “seizing” the boy’s notebook against his will to inspect his drawings, the school officials violated the 4th Amendment.  They further alleged that by punishing the student for the content of some of the cartoons, the school officials violated the 1st Amendment guarantee of free speech.

Thus this case begins with a very routine incident in the school—i.e., an administrator tells the student to hand over that notebook that he’s been drawing in at school.  The student does so, reluctantly. The administrator is alarmed by what she sees.  Disciplinary action follows.  Sometime later a lawyer alleges that this was an unconstitutional “seizure” and the school officials should be held personally liable.

The court rejected that argument, applying the familiar notion that searches in the school setting are judged by overall reasonableness. Here, the court held that the school officials acted reasonably. They had a reason to want to see what the student was drawing; they handled the situation without an undue incursion into the student’s privacy.  As far as the 1st Amendment, the court said this:

In light of [the student’s] behavioral history and his essay, the drawings were, to say the least, concerning.  They portray an “epic” battle involving guns against teachers at [the school], where the “final battle” was “win or die.”  It was perfectly reasonable for [the principal] and [special education director] to conclude that [the student’s] drawings, whether they were explicitly shared with another student or not, would cause disruption in the school.

In the Toolbox training, we emphasize that the special protections that students with disabilities enjoy come on top of the due process and other constitutional protections enjoyed by all students. The first step toward taking disciplinary action that comports with the special education laws is to make sure you comply with the general laws, such as the Constitution.  In the case of E.T. v. Bureau of Special Education Appeals, the school officials did just that.  The case was decided by the federal court for Massachusetts on March 11, 2016. We found it at 67 IDELR 118.

If you are interested in Toolbox training, let me know!

DAWG BONE: A ROUTINE INCIDENT IN SCHOOL CAN END UP AS A BATTLE OVER THE CONSTITUTION.

 File this one under: SPECIAL EDUCATION DISCIPLINE

TOMORROW: CAN I GET A WHOLE YEAR OFF AS A “REASONABLE ACCOMMODATION”?

Dawg Bones

These kids are really mean to the teacher. Is this a “hostile environment”?

Marie Youngblood had taught at Willowridge High School in Fort Bend ISD for just one semester when the principal informed her that he would be recommending nonrenewal of her contract at the end of the year.  At the end of the year, Ms. Youngblood was again informed that the contract would not be renewed. She retired before that happened. Then she filed the lawsuit.

In the suit, Ms. Youngblood claimed that she was subjected to racial discrimination because her classroom was a “hostile work environment.” That term usually comes into play when an employee is treated badly by supervisors.  But in this case, the teacher claimed that the students in her class created the racially charged, hostile environment.  She alleged that the high school students objected to an African-American teaching Spanish, and that this led to disparaging comments about her teaching ability, verbal threats of violence and physical acts, such as throwing a plastic container of pencils and markers at her.

To make the school district liable for this classroom environment, Ms. Youngblood would have to prove that the district 1) knew what was happening; and 2) “failed to take prompt remedial action.”  The district certainly knew what was happening—Ms. Youngblood filed over 100 student discipline referrals in that rocky first semester.  But the court recited numerous steps that the district took to address the situation. The school disciplined kids who were causing disruption; made more frequent visits to the classroom; and brought in a consultant who offered “helpful and constructive feedback” to the teacher. The court tossed the case out, noting that Ms. Youngblood could not possibly establish that Fort Bend “failed to take prompt remedial action.”

Getting back to our original question: can a teacher establish that she is working in a “hostile environment” based on how the students treat her?  The court noted that our 5th Circuit has not specifically addressed that question.  However, based on the elements of proof required in this type of lawsuit, it seems clear that something beyond unruly students would be necessary. No matter how ugly it gets in the classroom, the teacher has a winning case only if the teacher can also show administrative neglect—the failure to “take prompt remedial action.”

Notice that Ms. Youngblood was an experienced teacher, but she must have been on a probationary contract—it was her first year in the district after a 25-year career in Houston ISD.  Thus this case is yet another illustration of the fact that probationary teachers can seek legal recourse.  Fort Bend won this case because it did a good job of documenting, and then proving in court, its efforts to assist a teacher who was having difficulty.  Probationary status had nothing to do with it.

The case of Youngblood v. Fort Bend ISD was decided by the federal court for the Southern District of Texas on November 13, 2014.  The 5th Circuit later affirmed the ruling and the Supreme Court denied the writ of certiorari on April 19, 2016.  Case closed.

DAWG BONE: IT MIGHT BE A “HOSTILE WORK ENVIRONMENT” IF THE DISTRICT IGNORES THE PROBLEM.

File this one under: TITLE VII

 

TOMORROW: TOOLBOX TUESDAY!

Dawg Bones

Here’s the scorecard for professional organizations comments on the T-TESS rules.

School law nerds may find it interesting to review the comments and responses from T.E.A. in connection with the recently adopted rules for teacher appraisal. The Agency lumped these comments into 66 categories.  The responses to the comments fall into three categories:

THE AGENCY AGREES (i.e.: Good point! Thanks for pointing that out!)

HERE’S A CLARIFICATION (i.e.: We don’t think you understand the rule—let us explain)

THE AGENCY DISAGREES (i.e.: Are you kidding???  No way!)

Since most of the comments come from professional organizations, the Dawg thought it would be interesting (see reference to “school law nerds,” above) to compare how the comments of the various organizations were received. Herewith a scorecard:

 

ORGANIZATION         TEA AGREES       CLARIFICATION    TEA DISAGREES

TSTA                                      0                      4                                  13

ATPE                                      0                      4                                  6

TCTA                                      1                      4                                  13

AFT                                         3                      2                                  7

TASB                                      6.5                   0                                  .5

TASA                                      6.5                   0                                  .5

We’ll let you draw whatever conclusions you want from that. We’re just providing the data.  But we have to add that the most interesting of the 66 categories of comments was the last one:

Comment: Twelve individuals commented that what teachers have to contend with in general is making teaching more and more difficult.

Agency Response: The agency is unable to respond to these comments as they do not relate specifically to the proposed rules for teacher appraisal.

That’s probably the proper bureaucratic response, but don’t you wish that the Agency had added

NO KIDDING!! PREACH ON!!!!

DAWG BONE: MAYBE SOME DAY….

 

Dawg Bones

Throwback Thursday: Let’s take a look at one of the Golden Oldie Cases!

For the summer, we’re going to designate Thursdays as Throwback days, when we take a look at some of the seminal legal developments that are still important.  Let’s call these cases GOLDEN OLDIES!

The Golden Oldie in the area of student free speech is Tinker v. Des Moines School District, decided by the U.S. Supreme Court in 1969. Schools have not been the same since that fateful day when Mary Beth Tinker walked into her 8th grade classroom wearing a black armband in support of a Christmas truce in Vietnam.  The principal had gotten wind of this ahead of time and had specifically prohibited any such war protest in the school building.  So young Ms. Tinker was in direct defiance of the principal when she wore that armband to school.  What’s a principal to do?  He was already on record—he had to follow through with a suspension.

Little did he know that his decision would be the subject of a Supreme Court decision that we would still be talking about almost 50 years later.  The Supreme Court overturned Mary Beth’s suspension. The Court held that the student was engaging in symbolic speech that was protected under the First Amendment. The quote that has rung down through the decades is that “students do not shed their constitutional rights when they enter the schoolhouse gate.”

Of course this is not an unlimited right.  School officials retain the power to discipline students for expression if they “reasonably forecast” that the expression will cause a “material and substantial disruption” of school, or to interfere with the rights of others.

So what’s the latest on this? YouTube! Facebook!! Twitter!!!  The early cases were about armbands, political stickers, underground newspapers and other such things.  Now, of course, student expression is digital, and the courts have struggled to enunciate clear guidelines for the regulation of cyber speech that originates off campus but is incorporated into every cell phone and device in the student’s backpack.  The most recent decision that is relevant to Texas educators is Bell v. Itawamba County Schools. In this case the full 5th Circuit upheld disciplinary action against a student in Mississippi who wrote, recorded and disseminated a nasty rap accusing two coaches of sexual misconduct with students.  This case recognizes social media as a game changer, making the physical boundaries of the school less relevant than they were in simpler times.

How should principals and assistant principals proceed? Cautiously.  Remember that Tinker is the law of the land, and so when students express themselves verbally, symbolically, in writing or in cyberspace, the starting point is that the expression is probably protected under the First Amendment.  There are a number of exceptions to that general rule, but it is still the starting point for analysis.

DAWG BONE: THE GOLDEN OLDIE FOR STUDENT FREE SPEECH: TINKER v. DES MOINES

File this one under: FREE SPEECH

Dawg Bones

The Dawg is dismayed.

We feel dismayed today.  I expect you do too.  There is a reason for this, which I’m sure will come to you as you think about it.

DAWG BONE: HAPPENS EVERY YEAR ABOUT THIS TIME….

TOMORROW: WE INTRODUCE OUR NEW “GOLDEN OLDIE” FEATURE!!

Dawg Bones

Toolbox Tuesday! I keep seeing the term IAES in the federal law. What is that?

On Tuesdays we like to highlight The Toolbox—a one-day training program focusing on students with disabilities.  In that training, we talk a lot about the term “IAES”—an Interim Alternative Educational Setting.  The feds have put out a Q and A that defines this term:

Question C-1: What constitutes an IAES?

Answer: What constitutes an appropriate IAES will depend on the circumstances of each individual case. An IAES must be selected so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP. 

Like most things involving special education the emphasis here is on a case-by-case determination.  Thus the feds tell us that the appropriate IAES “will depend on the circumstances.”  That’s why it’s important that the IAES for a student be selected by the ARDC.  Even when dealing with “special circumstances” where the principal can order a prompt removal to an alternative setting, the ARDC must be the group that selects the setting.

Of course most districts do not have a dozen settings to choose from.  But all districts have at least one setting that should qualify as an appropriate IAES:  the DAEP.  When you break down what an IAES is, it seems that our Texas DAEPs should be able to satisfy the requirements.

*Are they “interim”?  Yes.

*Are they “alternative”?  Yes.

*Are they “educational”?  Yes.

*Do they “enable the child to participate in the general education curriculum”?  Yes.

*Do they enable the child to “progress toward meeting the goals” in the IEP?  Yes.

As a general rule, then, a DAEP that meets state standards for a DAEP, should qualify as an IAES. But remember that this is never an automatic thing.  Members of the ARDC should review the student’s IEP, and particularly the goals and the services.  Will the student be able to make progress toward achieving these goals while in the DAEP?  Can we still deliver the services that the IEP calls for?  The ARDC may need to consider tweaking and/or adjusting DAEP practices. Remember to fit the DAEP to the student, not the other way around.

This is just one of the topics that we cover in depth in the Toolbox Training. If interested, let me hear from you!

DAWG BONE: I-A-E-S IS USUALLY SPELLED D-A-E-P HERE IN TEXAS.

File this one under: SPECIAL EDUCATION DISCIPLINE

TOMORROW: WE ENTER A NEW MONTH WITH FEAR AND TREMBLING

Dawg Bones

Dear Dawg: We have been asked to translate all of our special education documents to Klingon. Do you know anyone who can help us with that?

The Dawg does not personally know any Klingons.  Nor does the Dawg know anyone who can translate the Notice of Procedural Safeguards document into Klingon. But there must be such people out there. We know this because we have read a brief that was filed in the case of Paramount Pictures Corp. v. Axanar Productions, Inc., now pending in the federal district court in California.

The Language Creation Society (LCS) filed an amicus curiae (friend of the court) brief in this case.  According to the LCS, Paramount is claiming that it owns the copyright to the entire Klingon language.  The LCS maintains that this is impossible—that you cannot "copyright” an entire language.

Reading the brief, we learned that there is a Klingon dictionary that has sold 250,000 copies. And there is Klingon Language Institute.  The KLI publishes a quarterly journal, offers a Klingon Language Certification Program and, of course, holds an annual conference.  Hamlet, Much Ado About Nothing and The Epic of Gilgamesh have been translated into Klingon, but so far as we know, none of the Harry Potter books have.  For movie buffs, you might want to check out the documentary about the KLI entitled “Earthlings: Ugly Bags of Mostly Water.”

The Dawg finds that reference kinda rude.

We will keep you posted as this litigation continues. In the meantime, we suspect you look for someone who has one of those Klingon Language Certificates to do your translating.

One final suggestion: if you talk to a Klingon, for heaven’s sake do not say: Hab Sosli Quch!  This means “your mother has a smooth forehead.”  Very insulting.

DAWG BONE: FROM ONE UGLY BAG OF MOSTLY WATER TO OTHERS: LIVE LONG AND PROSPER.

File this one under: WHERE ELSE BUT THE DAILY DAWG CAN YOU GET STUFF LIKE THIS?

Dawg Bones

Battered from the left and the right…

The Hillsborough County Public Schools in Florida are being battered by advocacy groups with strong opinions about religion.  The Freedom from Religion Foundation accuses the district of violating the Constitution.  Liberty Counsel, on the other hand, accuses the district of infringing on religious freedom.  What’s this about?

It’s about the Equal Access Act and the Fellowship for Christian Athletes. The story hit the news when the district temporarily banned adult leaders of the FCA from meeting with district students.

In a situation like this, the facts get spun to suit the storyline of the advocacy group.  So let’s just back up and review some of the basics of the Equal Access Act. This is the law that guarantees that student-led groups can meet in school facilities during non-instructional time.  The law applies to secondary schools in districts that receive federal funding.  The law requires that if such a school district allows one such group to meet, it must allow all of them to meet, regardless of religion, politics or philosophy.  The original intent of the law was to make sure that Bible clubs, FCA and other religiously oriented meetings would be allowed.  Schools are not to discriminate against these groups, just because they are religious.

However, the Equal Access Act does contain some limitations and rules.  Policy 5730 in Hillsborough County, Florida, accurately reflects those limitations and rules.  They are:

1. The activity has to be initiated by students;

2. Attendance at the meeting must be voluntary;

3. No agent or employee of the district is to promote, lead, or participate in the meeting;

4. The meeting must not materially and substantially interfere with instruction; and

5. Nonschool persons may not direct, conduct, control, or regularly attend the activity.

The fuss in Florida seems to be about that last point.  Here in Texas, by the way, you will find these same restrictions imposed with slightly different verbiage in Policy FNAB.

We don’t know what is going on in Florida. But it seems there are three possibilities.

*If it turns out that the district regularly turns a blind eye to “non-school persons” who are “regularly attending” student meetings, then the district has failed to enforce its policy.

*If it enforces the policy selectively, applying the rules to some groups but not others, then the disfavored group has a legitimate gripe.

*If it enforces the policy as written with regard to all groups, then it is not infringing on anyone’s religious freedom or discriminating in any way.

It is just following the law and its own policy. That’s what the Dawg recommends.

DAWG BONE: TAKE A LOOK AT FNAB, LEGAL AND LOCAL, AND MAKE SURE YOU ARE ENFORCING IT UNIFORMLY.

File this one under: EQUAL ACCESS ACT

TOMORROW: HOW MUCH KLINGON DO YOU KNOW?

Dawg Bones

Who wouldn’t want “objective public education”?

A non-profit organization called COPE (Citizens for Objective Public Education) filed suit against the State Board of Education in Kansas over the curriculum standards for science.  COPE alleged that the Kansas board was “seeking to establish a non-religious worldview in the guise of science education.  It argues that such a worldview will be inculcated in children throughout their thirteen-year public school experience by requiring students, beginning in kindergarten, to answer questions about the cause and nature of life with only scientific, non-religious explanations.” According to the suit, this is all part of a plan that is “driven by a covert attempt to guide children to reject religious beliefs.”

The federal court tossed the case out, and now the 10th Circuit has affirmed that ruling.  The court held that COPE had failed to establish “standing” to sue.  The suit alleged injuries that the court found to be speculative, based on what might happen in the future.  Thus with no “standing” the court did not have jurisdiction to consider the merits of the case.

However, the court’s opinion casts considerable doubt on the validity of any curriculum-based attack as broad as this one.  As a general rule, federal courts have always been reluctant to “constitutionalize” decisions about the curriculum to be taught in the public schools.  There are plenty of avenues for concerned citizens to have their voices heard about curriculum standards. Those fights will continue to be fought before textbook committees, school boards and state agencies.  Judges generally stay out of the fray.

The case is COPE v. Kansas State Board of Education, decided by the 10th Circuit Court of Appeals on April 19, 2016.  We found it at 2016 WL 1569621.

DAWG BONE:  JUDGES DON’T LIKE TO “CONSTITUTIONALIZE” CURRICULUM DEBATES.

File this one under: GOVERNANCE

Are you planning to attend the Summer Leadership Institute in San Antonio?  If so, the Dawg recommends that you catch the two presentations done by attorneys with our firm.  On June 16 at 11:15, Elizabeth Neally and Robb Decker present “WTFNG: Effectively Navigating District Grievances.”  Then on June 17 at 9:30 you can hear Mark Goulet and Joey Moore on “Freedom of Tweets: School Board Members and Social Media.”  And don’t forget to stop by the Walsh Gallegos table!

TOMORROW: CAN YOU BAN ADULTS FROM THE FELLOWSHIP OF CHRISTIAN ATHLETES MEETINGS?

Dawg Bones

They handcuffed a seven-year old? How did that work out???

It’s Toolbox Tuesday here—the day when we highlight legal issues involving the discipline of students with disabilities.  The Toolbox is an all-day training program that provides ten “tools” designed to simultaneously serve each student appropriately, while maintaining safety and order in the school building. Today, we’re reviewing a case from New Mexico that ended up with a 50-pound, 49 inch 2nd grader handcuffed to a chair.

This episode began when the teacher’s aide contacted the school social worker, seeking help with C.V., a gifted 2nd grader who received special education services due to autism.

The social worker had trouble with the student also, and contacted the assistant principal, who asked that the boy be brought to her office.  On the way to the A.P.’s office, C.V. ran away.

They could not locate the student at first, and so the school reached out to the parents. The mother did not answer several calls. The dad was busy at work and could not come to the school.

The student ran to the nurse’s office and locked himself in the bathroom.  From there, he bolted for the cafeteria.  At this point, the school called in Office Sanchez, its security officer.

Seeing the officer on the way, C.V. ran again. Officer Sanchez called the parents.  Dad was at the airport and could not get to the school for a few hours. But they reached the mother this time, and she said she could be at the school in 30 minutes.  Officer Sanchez then asked the mother for permission to restrain the boy. She said “Yes” but later testified that she thought that this would be a hug or a hold—not steel handcuffs.

Officer Sanchez did not immediately cuff the child.  She led the child to a room and blocked the door.  The boy kicked his legs, swung his arms and pulled power cables out of the wall.  When the social worker approached the student to try to calm him down, he swung the power cord at her.  He kicked the social worker and then Officer Sanchez.  Still no handcuffs.

Then the boy began playing with a rubber band. When he was told to give it to Officer Sanchez, he shot her with it.  They then tussled over the rubber band, and the boy kicked the officer.  Officer Sanchez warned C.V. that this might lead to handcuffs.  The boy ignored this warning, continuing to kick and attempt to get out of his chair.  Officer Sanchez cuffed him to the chair.

This did not calm the boy down. The boy continued to cry, yell and struggle, at one point dragging the chair with him as he tried to kick the officer. Mom arrived and demanded that the cuffs come off. They did. Mom took pictures of the welts and scratches on the boy’s wrists.

The mother withdrew the boy from that school and enrolled him in another school in the same district.  Then the mother sued, claiming that the district violated the Americans with Disabilities Act by discriminating against C.V. based on his disability.

The federal court ruled for the district on this one, and the 10th Circuit affirmed that ruling. The court did not express any opinion about the propriety of using handcuffs on a small child. In fact, the court’s analysis begins with a disclaimer: “Our role is not to opine on whether it was wrong to handcuff C.V.”  Instead, the court focused on whether or not the district had discriminated on the basis of disability.

The court had little trouble concluding that this episode was based on the student’s conduct—not his disability.  After all, the student was out-of-control for almost two hours.  But the parents argued that the conduct was a manifestation of the boy’s disability. What about that?  The court:

Appellants fail to cite any evidence showing his conduct indeed was a manifestation of his disability. Indeed, they cite no authority suggesting a school may not regulate a student’s conduct if that conduct is a manifestation of a disability.

I expect some of you are wondering about that last statement. Can a school “regulate” a student’s conduct if the conduct is a manifestation of disability?  Yes.  The law prohibits a disciplinary change of placement that is based on behavior that is a manifestation. Other forms of “regulation” are not prohibited.  Available forms of “regulation” include short term suspension, short term ISS, and physical restraint.  Of course all of those forms of regulation must be done in compliance with state law. That was not at issue here.

In the Toolbox training we talk about physical restraint, and when it is appropriate to use it under Texas law. If you are interested in Toolbox training, please give me a holler! Or an e-holler!

The case of J.V. v. Albuquerque Public Schools was decided by the 10th Circuit Court of Appeals on February 19, 2016.  We found it at 116 LRP 6184.

DAWG BONE: THERE ARE FORMS OF “REGULATION” OF BEHAVIOR THAT ARE AVAILABLE, EVEN WHEN THE BEHAVIOR IS A MANIFESTATION OF DISABILITY.  

File this one under: SPECIAL EDUCATION DISCIPLINE

TOMORROW: CHALLENGE TO THE SCIENCE CURRICULUM IN DOROTHY AND TOTO LAND.