All posts by Jim Walsh

Dawg Bones

We had to wait until AFTER Mother’s Day to tell you about this one…

The Dawg hopes that all you mothers and grandmothers had a splendid day yesterday. We hope you were honored and celebrated for your many virtues.  We just want to go on record—the Dawg LOVES mothers, and respects all the efforts that moms make to keep their kids safe.  It’s just that sometimes, those efforts run into the law. That’s what happened to Judith Moreno.

Ms. Moreno alleged that her son was sexually violated by a teacher in McAllen ISD.  She sued the district, alleging that she told district officials what happened, but they failed to respond appropriately. Moreover, she alleged that the district ignored the “endemic problem on campus” concerning improper relationships between educators and students.

Ms. Moreno’s procedural problem was that she filed the suit on her own behalf—not as “next friend” on behalf of her child.  So she had to prove that the district violated her rights—not her son’s.  This turned out to be a problem.  The court noted the parent-child relationship is constitutionally protected, but not as broadly as Ms. Moreno would like. The court noted that the “case law is narrow and largely addresses the right of parents to make critical child-rearing decisions concerning the care, custody, and control of minors.”  The court summed it up like this:

Ms. Moreno is arguing that McAllen ISD’s actions allegedly caused her child harm, and as a result, she was deprived of her constitutionally protected rights.  The Court cannot find any case law in the 5th Circuit to support this argument, and Plaintiffs have not provided any relevant authority.

What about the fact that the boy was allegedly raped? The court:

While a student has a right to be free from state-occasioned damage to his bodily integrity, it is the student, or the parent as next friend, that must bring forth a claim that this right was violated.

The suit also alleged that the parent had suffered the loss of “consortium” due to the injury to her child. The court dismissed this, noting that “Texas law is clear and it does not authorize a parent to recover consortium damages for non-fatal injuries to a child, whether due to negligent or intentional conduct.”  Similarly, the claims for intentional torts, such as assault and battery, and the intentional infliction of emotional distress ran smack into the Texas law of governmental immunity.

All of Ms. Moreno’s claims were dismissed.  The court’s opinion did not address what the lawyers call “the merits.”  Was the boy sexually assaulted by his teacher?  Did the district ignore the mother’s complaint?  Was there an “endemic problem” on campus? This case answers none of those questions.  Instead, the case reminds us that the law requires judges to apply a cold blooded analysis, even when the case is brought by a hurting mother.

The case of Moreno v. McAllen ISD was decided by the U.S. District Court for the Southern District of Texas on April 18, 2016.  We found it at 2016 WL 1258410.

DAWG BONE: NOT ALL PAINFUL EVENTS CAN BE REMEDIED IN COURT.

TOMORROW: TOOLBOX TUESDAY!! WE WILL LOOK AT THE SPECIAL RULES FOR DRUG OFFENSES.

Dawg Bones

Dear Dawg: Our school buses drive by the home of our local nudist every day. Help!

Dear Dawg: First of all, let me say that we all like Cecil.  We all hold the view that what you do in the privacy of your own home is your business.  Cecil has lived here forever and has many friends.  But he does have his eccentric side.  Cecil likes to spend a lot of time sunning himself in the yard—sunning his WHOLE self.  Cecil is affectionately known as “our local nudist.”  Sometimes he has company—both male and female—nekkid as jaybirds every one of them.  Cecil has put up a privacy fence, so for the most part this is not a problem. But from a school bus, you can see right over that fence.  Unfortunately, the route our buses take requires every one of them to go right down Cecil’s street.  The kids find this very exciting, but we are getting parent complaints and are worried about our responsibilities.  Waddyathink? Any suggestions????  THAT’S THE BARE TRUTH.

DEAR THAT’S THE BARE:  You could let some air out of the tires.  You could tell the driver to create a distraction on the other side of the bus (HEY, KIDS—LOOK OVER THERE!!) and drive real fast.  You could declare this to be a field trip for credit in the health class.  Beyond that, we’re not sure. Of course you could talk to Cecil about it.  Since he has erected a privacy fence, it seems he is wanting to shield the general public from seeing evidence of his alternative lifestyle. He is also probably wanting to make sure that he does not get charged with indecent exposure.  It’s not a crime to go all Adam and Eve out in the woods where no one can see you.  Indecent exposure occurs when the person is reckless about whether or not others can see his private parts, and you are showing yourself off with an intent to arouse or gratify someone’s sexual desires. So we think you ought to let Cecil know that the privacy fence is not fully effective, and see if he can at least build it a little higher.  Good luck!

DAWG BONE: THIS COMES UNDER THE CATEGORY OF “YOU CAN’T MAKE THIS STUFF UP.”

 MONDAY: HOW FAR DOES “REASONABLE ACCOMMODATION” EXTEND?

Dawg Bones

Can someone get my personal email address through a Public Information Act request?

Let’s suppose that you are a member of the local school board.  You have an email address that the district has provided for you, and you are encouraged to use that account for all school-related business.  Of course you also have your personal email address.  Sometimes you use your personal account for school business. It’s just more convenient sometimes. Or perhaps you are communicating with a voter in the district who happens to have your personal email address.

Then someone files a PIA (Public Information Act) request for all school-related emails, whether on the district account or your personal account. Your lawyer has advised you that the content of your emails is “public information” and will have to be disclosed, regardless of what device or what account you used. But what about your email address? Doesn’t the PIA specifically say that an individual’s personal email address is confidential and can be redacted?

That was the issue in the recently decided case of The Austin Bulldog v. Leffingwell.  The Court of Appeals in Austin noted that the PIA does allow redaction of personal email addresses of “a member of the public.”  When the Austin Bulldog obtained email correspondence among the Austin mayor and city council members, the private email addresses of the city officials were redacted. The Bulldog went after those addresses (what…..you would expect the BULLDOG to back off?  No way!).  The Attorney General backed the city on this one. The AG construed the phrase “a member of the public” to be just as broad as it sounds. Read literally, “a member of the public” certainly would include the mayor and all of the council members.

But the city was dealing with The Bulldog! So the matter went on to court. The specific language in the PIA at issue was Section 552.137(a):

Except as otherwise provided by this section, an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under this chapter.

It’s pretty obvious what the purpose of that section is.  Joe Q. Public sends an email to his elected representative.  Joe should not have to sacrifice his privacy for the privilege of communicating with a governmental official. So his address is confidential since he is “a member of the public.”

As the Third Court points out in its opinion, the term “a member of the public” is used to distinguish Joe from the elected representative that he is communicating with.  Thus the key holding of this case:

Accordingly, we hold that “member of the public” in PIA section 552.137 does not include a person who is part of the governmental body that was “communicat[ed] with” by email.

School board members sometimes say “I didn’t do that as a board member.  I took off my board hat and put on my private citizen hat.”  That can happen sometimes.  For example, suppose a school board member sends an email to Governor Abbott asking him to grant a stay of execution to someone on death row.  This has nothing to do with school business.  In that case, the board member is “a member of the public.”  But when someone files a PIA request for emails that address the business of the school district, the personal email address of the board member cannot be redacted.

The Bulldog case was decided by the Third Court of Appeals, Austin, April 8, 2016; Docket No. 03-13-00604-CV.

DAWG BONE: SCHOOL BOARD MEMBER’S PERSONAL EMAIL ADDRESS MIGHT BE DISCLOSABLE UNDER PIA.

 

TOMORROW: WHAT SHOULD WE DO IF THE BUS ROUTE TAKES US PAST THE HOME OF OUR LOCAL NUDIST????

Dawg Bones

Student misses out on top 10%. Files suit.

Rafael Rubalcaba III graduated just a bit outside of the top ten percent of his graduating class at Raymondville High School in 2013.  He claimed that this was a mistake, that the district should have given him more credit for a geometry class that he took in 8th grade.  In the suit, Mr. Rubalcaba alleged that the district’s error cost him a college scholarship and the opportunity to enroll in some of our top universities.

The trial court dismissed the suit and now the Court of Appeals has affirmed that decision.  The court held that the district was immune from liability.  The suit alleged that the board discussed the policy pertaining to GPAs in closed session, which would not be permitted under the Texas Open Meetings Act (TOMA). However, there was no allegation or proof that the board took a vote in closed session.  Therefore, there was no basis for the court to exercise jurisdiction. On top of that, the student had graduated and enrolled in college, and thus, the court deemed the matter “moot.”

The decision also notes that Mr. Rubalcaba had administrative remedies available to him that he failed to take advantage of. He never filed a formal complaint with the district as per district policy.  Having never presented the matter to the RISD board, he did not have a basis to appeal a decision to T.E.A.  The court summarized: “We hold that Rubalcaba failed to exhaust his administrative remedies, i.e., he did not appeal to the Commissioner of Education, filed no formal complaint, and did not sign up to present his challenge to the Board.”

Case dismissed.  After the trial court ruled against Mr. Rubalcaba he filed a motion for new trial and sought sanctions against the district. That did not turn out so well.  The trial court not only denied the motion for new trial, it also slapped Mr. Rubalcaba with an order to pay $1500 to the school district as a sanction.  The Court of Appeals reversed that order.  It noted that such sanctions are reserved for “those egregious situations where the worst of the bar uses our honored system for ill motive without regard to reason and the guiding principles of the law.”  That was not the case here.  So Mr. Rubalcaba does not owe the district $1500, but he has lost his lawsuit.  In fact, he did not even get to present the merits of his argument because of his failure to overcome the district’s immunity, and his failure to pursue administrative remedies.

It’s just about graduation time here in Texas, so we thought we’d tell you about this case.  Be sure that you follow your district policy in calculating GPA.  With our top ten percent law and the scholarships that are available to students based on class rank, there is more at stake than bragging rights.  If parents or students feel they have been treated unfairly, refer them to your local district grievance procedures.

The case of Rubalcaba v. Raymondville ISD was decided by the Texas Court of Appeals for Corpus Christi-Edinburg on March 31, 2016. We found it at 2016 WL 1274486.

DAWG BONE: CALCULATING GPA IS SERIOUS BUSINESS. BE SURE YOU GET IT RIGHT.

TOMORROW! IS A SCHOOL BOARD MEMBER’S PERSONAL EMAIL ADDRESS ALWAYS CONFIDENTIAL?

Dawg Bones

It’s Toolbox Tuesday! Pennsylvania case shows how to use Tool #4.

On Tuesdays around here we like to highlight The Toolbox—a full day training program addressing your options when dealing with students with disabilities who present challenging behaviors.  Tool #4 involves a request for an expedited hearing to seek the removal of a student to an interim setting. We don’t see a lot of Tool #4 cases, but we found one from Pennsylvania that provides a textbook example of how and when this Tool should be used.

The student moved to the Upper Dublin School District in Pennsylvania at the start of this school year.  The student had been in a “neighboring state” in prior school years. The Upper Dublin district had the student’s latest IEP, but not a lot of other records. It implemented the existing IEP as the school year began, and things went just fine….for awhile.

The first major incident was on October 27th, when the student cursed, yelled and elbowed a teacher in the stomach.  Three day suspension.

November 17th--“another behavior incident, involving aggression toward students and staff, incendiary and threatening remarks, profanity, and toppling or attempting to topple furniture.  Six day suspension.

November 19th: the father filed for a due process hearing.

Early December: the district completes its evaluation of the student, rules out autism, but finds he has an emotional disturbance.

December 14: “another behavior incident….profanity, incendiary remarks, and threats to the school…destroyed property and threw objects…attempted to topple the conference room table.”  Five day suspension. That brings the cumulative total to 14 days of suspension—all within one semester of school.  Pennsylvania law requires an IEP Team meeting after 15 cumulative days.

December 22: IEP Team concludes that the student’s behaviors are a manifestation of his disability. No one disagrees.

There was one more incident on December 23rd, the last day before the break. The IEP Team conducted another MDR about this on January 7th and again concluded that the behavior was a manifestation of disability.  The district then began to explore private placements for the student.

January 13: the district recommends placement at its expense in a private school. But the father does not agree.

Let’s summarize: we have a student with a serious emotional disturbance whose behavior has escalated over the course of the year.  District staff report that the student does not de-escalate.  They are worried about someone getting hurt.  They have proposed a change of placement, but the father does not agree to it and thus under “stay put” the student remains where he is.  This fact situation is a prescription for the use of Tool #4—a request by the district for an expedited hearing to move the student to an interim setting for up to 45 school days.

The hearing officer held that the district carried its heavy burden of proof:

On this record, the District has carried its burden of proof that maintaining the student’s current placement is substantially likely to result in injury to the student or others.  This finding is based on the fact that each of the incidents of note (October 27th, November 17th, December 14th and December 23rd) involved contact with another individual, or non-contact aggression directed at another individual, and/or the throwing of objects or violent moving of furniture. The student also voiced threats to self and/or others over the course of these incidents. Finally, the testimony of District witnesses was credible and persuasive that the amplified intensity of the behaviors, and increasing difficulty in de-escalation, from incident to incident was a particularly grave concern.

The hearing officer ordered that the student be placed at the private program the school had recommended for 45 school days, during which time the parties would work toward a more permanent solution.

That’s how Tool #4 works. You want to change the student’s placement, but the parent will not agree. The behaviors of the student are a manifestation of the student’s disability. You are concerned that if things stay as they are, someone is going to get hurt.  There are no “special circumstances” present, so the law does not allow any school official to remove the student unilaterally. But you can seek an order from the hearing officer, as the Upper Dublin district did here.

The case is Upper Dublin School District, decided by a Pennsylvania special education due process hearing officer on February 10, 2016.  We found it at 116 LRP 8837.

DAWG BONE: TOOL #4 IS USED RARELY, BUT IT’S IMPORTANT TO HAVE IN YOUR TOOLBOX.

 

TOMORROW: HEY, IT’S ABOUT TIME TO DECLARE YOUR TOP TEN PERCENT, VALEDICTORIAN AND ALL THAT! CAN THAT LEAD TO LITIGATION???

Dawg Bones

Confused about how to deal with transgender students? Here’s some help!

The National School Boards Association has published a guide to serving transgender students in public schools. We think you will find it helpful.  You can go to the NSBA website and find this as a free download: TRANSGENDER STUDENTS IN SCHOOLS.  The Guide is written as a series of FAQs addressing the most common issues that arise in the operation of your school.  Here is the link.

The law on this subject is evolving. Of course “evolving” means that things are not exactly clear.  We know that students should never be bullied or harassed based on any characteristic, including the student’s sex, sexual orientation or gender identity.  We also know that Title IX regulations specifically permit separation of the sexes with regard to the use of the bathroom, locker rooms and sleeping arrangements, so long as the facilities are comparable. So is it “discrimination” to tell a transgender male (born female) that he cannot use the boys’ bathroom?  According to the first case to reach the Circuit Court level, it is.  The decision, G.G. v. Gloucester County School Board, was decided by 2-1 vote of a panel of the 4th Circuit. This is not a binding precedent for Texas schools which are in the 5th Circuit.  However, being the first decision of a federal appellate court, this is an important decision that will be a factor in all future cases.

The 4th Circuit’s decision is based on the concept of judicial deference to the administrative agency that is responsible for interpreting and enforcing a federal law. The court’s two-person majority found the Title IX regulations ambiguous with regard to transgender students and bathroom use.  In light of that ambiguity, the court held that it must defer to the interpretation of the Department of Education (DOE), as long as that interpretation was reasonable.  The DOE’s interpretation is that schools must “generally treat transgender students consistent with their gender identity.” This would mean that the transgender male must be allowed to use the boys’ bathroom.  The 4th Circuit majority held that DOE’s interpretation was reasonable, and thus the policy of the Virginia school district that barred the student from the boys’ bathroom was a violation of Title IX.  The dissenting judge found no ambiguity in the regulations, and thus no reason to defer to DOE’s interpretation. He would have upheld the school’s policy. The case is G.G. v. Gloucester County School Board, 2016 WL 1567467, decided by the 4th Circuit on April 19, 2016.

Litigation over this issue is going to continue for the foreseeable future.  Thus we recommend that you download and study the NSBA Guide.  Remember, also, that every issue that arises in your district concerning transgender students or employees should be reviewed individually.  The Guide published by NSBA is a good starting point for a general outline of the issues and how the DOE and the courts have addressed them so far. But there is no substitute for legal advice from your school’s attorney on whatever specific issues and cases arise.

DAWG BONE: THE CULTURE WARS ALWAYS FIND THEIR WAY INTO THE PUBLIC SCHOOL.

 

TOMORROW IS TOOLBOX TUESDAY! WE WILL REVIEW A CASE INVOLVING A STUDENT WHOSE VIOLENT OUTBURSTS CAUSED THE SCHOOL DISTRICT TO SEEK AN INTERIM REMOVAL.

Dawg Bones

Dear Dawg: Do you think the board is trying to send me a message?

Dear Dawg: our school board has come up with an interesting approach to posting the “no guns” signs in our administration building. At the last board meeting, they unanimously passed the following resolution:

WHEREAS, the board wishes to prohibit the possession or use of firearms in the school administration building; and

WHEREAS, the board wants to make this very clear to the public, by posting the appropriate signs; and

WHEREAS, it is well known that people don’t notice signs with a lot of words on the door of a building—they just walk right past; and

WHEREAS, the board wishes to assign to the superintendent tasks that he is capable of performing; and

WHEREAS, the board is tired of answering taxpayers questions about what exactly the superintendent does, and why we pay him so much;

NOW, THEREFORE, BE IT RESOLVED, that the superintendent shall cause to be manufactured what is commonly known as a “sandwich board sign” which shall contain the appropriate language from the Texas Penal Code concerning both open and closed carrying of firearms, with said sign to be in English on one side and Spanish on the other, and that the said superintendent shall affix said sandwich board sign to his person and march back and forth in front of the entrance to the administration building from 8:00 a.m. to 5:00 p.m., every business day until relieved of this duty by vote of the board; and

BE IT FURTHER RESOLVED that the superintendent may not delegate this responsibility to anyone else.

What do you think, Dawg? Should I be looking for work elsewhere?  SANDWICH BOARD SUPERINTENDENT.

DEAR SANDWICH BOARD: Kinda looks that way, dontcha think?  But look on the bright side.  I don’t see anything in that Resolution that reduces your pay.  We know a lot of people who would be willing to carry a sandwich board sign for the pay of a superintendent. So enjoy the exercise, carry out your duties with enthusiasm, and look forward to your next evaluation.

DAWG BONE: WATCH OUT FOR CREATIVE SCHOOL BOARDS

Dawg Bones

Jury sides with the district in a nonrenewal case. 5th Circuit affirms.

The conventional wisdom among school district lawyers is that it’s best to win your case before it gets to a jury, especially if the plaintiff is a teacher. You just never know about juries.  But we do know that people tend to identify with the little guy.  All of us have been the employee. Not all of us have been the boss. So it’s noteworthy when a teacher vs. school district case gets to the jury and the jury sides with the district. That’s what happened in Waterman v. McKinney ISD. 

The school board proposed to non-renew Mr. Waterman’s contract due to allegations that he had behaved inappropriately with co-workers.  After hearing his appeal, the school board voted not to renew his contract.   The Commissioner affirmed this decision.

Mr. Waterman then sued in federal court, alleging that the district had violated his constitutional rights.  The court dismissed his claims that were based on the 9th and 14th Amendments, but the 1st Amendment claim was presented to a jury. The jury verdict was in favor of the district and the judge entered a judgment in accord with the jury.

The 5th Circuit affirmed the decision issuing an opinion that will not be published in the official reports. The appellate opinion deals more with procedural issues than substantive constitutional issues.  Mr. Waterman objected to the introduction of some evidence, and the exclusion of other evidence. The court found no significant error in the way the trial judge had handled the case:

This was not a case decided on sparse evidence.  Instead, the trial record is replete with evidence; much of it suggests that Waterman behaved inappropriately and made some coworkers feel uncomfortable and file complaints.

Mr. Waterman also complained that he was not allowed to amend his pleadings two days prior to trial.  The court noted that this was “nearly nine months after the amendment deadline had passed. This delay is inexcusable….”

The case was decided on March 22, 2016. We found it at 2016 WL 1127429.

DAWG BONE: WADDYAKNOW….JURIES SOMETIMES LIKE SCHOOL DISTRICTS

Dawg Bones

“I swear by my momma…I’m going to bring a gun here and kill him.” Criminal offense?

R.D., a student in Fort Worth ISD, was pretty upset when the campus cop brought him to the on-campus intervention room.  According to the teacher, R.D. told the cop “I’m going to get you.  I’m going to kill you.”  The cop left the room without responding to this, but the student continued to talk about it. He told the teacher “I swear on my momma, I’m going to bring something here, bring a gun here and kill him.”  The teacher tried to calm the boy down. Another student in the room also intervened: “No, man, you don’t want to say that.”  According to the teacher, R.D. continued to threaten the police officer, and then left the room, ignoring the teacher’s repeated instructions to come back.

The court does not tell us what happened after that, but presumably nobody got hurt. The student was not charged with assault, or illegal possession of a firearm. But he was charged with the criminal offense of threatening to exhibit a firearm on school property, in violation of T.E.C. 37.125.  He was convicted and appealed to the Fort Worth Court of Appeals. The court upheld his conviction.

The boy’s lawyer pointed out that there was no evidence that the boy had access to a gun, or had any intent to carry out this threat. The court held that this was “immaterial.”  The statute does not require proof that the student intended to carry out the threat; it only requires proof that the student intended “to cause alarm.”

So the next argument was that most of what the student said was not said directly to the police officer.  The court dismissed this argument also, noting that it was reasonable for the trial court to infer that the boy fully expected that his threatening words would get back to their intended target and would, in fact, cause “alarm.”

The statute makes it a crime if a person “intentionally exhibits, uses or THREATENS to exhibit or use a firearm” on school property, or a school bus, if it is done “in a manner INTENDED TO CAUSE ALARM or personal injury to another person or damage to school property.”  Here, the court concluded that there was sufficient evidence presented at the trial to establish that the student threatened to exhibit a gun in a manner intended to cause alarm.

The case is In the Matter of R.D., decided by the Court of Appeals in Fort Worth, on February 11, 2016. We found it at 2016 WL 551906.

DAWG BONE: THIS IS NOT “OPEN CARRY” OR “CLOSED CARRY.” IT’S “NO-CARRY,” BUT IT’S STILL A CRIMINAL OFFENSE.

LAST CHANCE: Those of you at the LRP National Institute in New Orleans have one more chance to hear the Dawg’s partner and head honcho (honcha?) in our New Mexico office, Elena Gallegos, at 11:15 this morning. The subject is student discipline. Don’t miss it!

Dawg Bones

It’s Toolbox Tuesday! What’s this about “serious bodily injury”?

Here at the Daily Dawg we dedicate Tuesdays to the Toolbox--a one day training program for campus administrators and special education personnel.  In the training, we review 10 "tools" that educators can use to maintain a safe and orderly campus while appropriately serving kids with challenging behaviors.  Tool #5 involves the removal of the student to an alternative setting (usually DAEP) for up 45 school days. This Tool can be used if the student engages in one of the three "special circumstances" offenses set out in the law. Those three involve 1) drugs; 2) weapons; or 3) the infliction of "serious bodily injury. So today, let's review what amounts to a "serious bodily injury."

The key word there is "serious." If the statute had omitted that word, leaving just "bodily injury," principals would be using Tool #5 much more frequently than they do. We think that Congress deliberately limited the power of campus administrators by adding the word "serious." The term actually has a definition, which we will provide below. But if you don't want to plow through all of that verbiage, we can just tell you that minor cuts and scrapes, bumps and bruises don't qualify.  In fact, we found two cases that held that a broken nose is not "serious" enough.

One case held that a kick and head butt to the teacher's chest resulted in "extreme physical pain" which was sufficient to make the injury "serious." That hearing officer seemed to rely on the teacher's subjective assessment of the pain as a 10 on the 10-point scale, and "the worst of her life."  Really?   Methinks she has not endured a root canal, much less, childbirth.

Suffice it to say that if you did not have to call for emergency medical help, you probably don't have a "serious" bodily injury.  Here is the official definition:

Bodily injury which involves—

a) a substantial risk of death;

b) extreme physical pain;

c) protracted and obvious disfigurement; or

d) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

DAWG BONE: LET’S HOPE YOU NEVER HAVE TO USE TOOL #5 DUE TO A SERIOUS BODILY INJURY.

ONE MORE THING!  The Gallegos of “Walsh Gallegos” is speaking at the LRP National Institute in NOLA today.  Elena will elucidate the ins and outs of OSEP letters at 10:15 this morning, while covering student discipline at 1:15.  Then the firm will host a client reception at 5:30 at Mulate’s—the Original Cajun Restaurant. Wish I could be there!