All posts by Jim Walsh

Dawg Bones

Court dismisses case from cheerleader wannabe.

Last Friday we told you a little bit about a cheerleader dispute in Highland Park ISD (Region 10).  The court held that whatever “right” a student has to be a cheerleader is not protected by the U.S. Constitution.  Thus the student’s due process claim was dismissed. But that was just one of many legal theories that the parents and student presented.  Here is a quick sample of other legal nuggets from this decision.

1. A suit against a superintendent in his “official capacity” is the same thing as a suit against the district. The plaintiffs sued both HPISD and its superintendent. The court said that this was redundant. Thus all claims against former superintendent Dawson Orr were tossed out.

2. Section 121.003 of the Texas Human Resources Code applies only to physical access to public facilities. This statute prohibits discrimination against people with disabilities in conjunction with “admission and access” to public facilities. This suit was not about physical access to, or the use of, HPISD facilities. This claim was tossed out.

3. Plaintiffs alleged denial of FAPE under IDEA and Section 504, but never requested a special education due process hearing. Thus these claims were dismissed due to failure to exhaust administrative remedies. Lawyers take note: the court held that exhaustion is a jurisdictional requirement—not just an affirmative defense.

4. Plaintiffs alleged an IIED claim: Intentional Infliction of Emotional Distress. The court dismissed this claim, noting that the Tort Claims Act protects school districts from any liability for an intentional tort.

5. The constitutional claim against HPISD failed because there was no pleading that a district policy or custom approved by the school board caused harm. The superintendent was accused of wrongdoing, but the superintendent is not a “policymaker.” Only the board is.

6. The parents’ claims as individuals were dismissed because they did not allege that they have disabilities or were discriminated against due to a disability.

7. The plaintiffs’ motion to amend their pleadings, so as to make out a stronger case, was mostly denied. The court noted “no amount of artful or creative pleading” would rescue some of the purported claims. However, the court left one door slightly ajar, permitting the plaintiffs to amend their Equal Protection Claim. But they would have to plead “sufficient facts to show that this injury occurred because of HPISD custom or policy.”

You are probably wondering what this case is all about.  The plaintiffs alleged that the district failed to provide accommodations or properly implement the student’s 504 plan.  This allegedly caused poor grades, the expense of outside tutors, and disqualification from the Cheer Squad.  The facts as alleged are much in dispute, but at this stage of the legal proceedings, the court takes the facts alleged as true. Even so, the court dismissed all of the claims outlined above.

The case is Dabney v. Highland Park ISD, decided by the federal court for the Northern District of Texas, on March 31, 2016.

DAWG BONE: SUITS OVER CHEERLEADING ARE ALWAYS INTERESTING, BUT RARELY SUCCESSFUL.

And remember: those of you at the LRP National Institute in New Orleans can hear my longtime partner, Elena Gallegos, speak about OSEP advice at 10:00 this morning.  Say hi to Elena for me!

Dawg Bones

News Bulletin! There is no constitutional right to be a cheerleader!

We thought this point was well established.  There have been numerous judicial decisions about kids participating in various extracurricular activities.  The message from those cases has been consistent and clear—the U.S. Constitution does not guarantee, or even protect, the right to participate in after school activities.

The Constitution does protect a student’s right to an education. That’s why “due process” is necessary prior to a suspension from school, even a short one.  But the student’s right to “property” and “liberty” comes to an end when the school day does.

Federal Judge Sam Lindsay affirmed these basic principles in a case involving a wannabe cheerleader in Highland Park ISD (Region 10).  It’s a lengthy decision addressing myriad claims by the parents and the student.  As to cheerleading, here is the takeaway quote:

The court disagrees with Plaintiffs’ contention that Kate has a property or liberty interest in cheerleading.

That’s pretty clear.  What were Kate and her parents and their lawyer thinking? They cited a Pennsylvania case from 2011, but the judge found their reliance on this case “misplaced.”  In fact, Hizzoner had some harsh words to say about this:

Plaintiffs are not being forthright with the court, and the court is troubled by their attempt to mislead it through the misapplication of case law.

We will talk more about this very interesting case next week. But this being a Friday, we had to highlight the cheerleader aspect.  Have a good weekend, Readers!

The case is Dabney v. Highland Park ISD, decided by the federal court for the Northern District of Texas on March 31, 2016.

DAWG BONE: GENERAL RULE: ALWAYS BE “FORTHRIGHT” WITH THE JUDGE.

Dawg Bones

Happy San Jacinto Day!

This is the day when Texans celebrate the battle that won independence for Texas. The battle lasted 18 minutes.  That’s not very long.  Teachers get a longer duty-free lunch than that.  I think there are some TV commercials that last about 18 minutes.  We now have school for 75,600 minutes.  That’s enough time for you to re-enact the glorious battle 4,200 times.

The fact that Texas secured its independence in less time than it takes for you to dry a load of laundry shows that BIG THINGS can happen in a SHORT PERIOD OF TIME.  Educators know this, because they facilitate BIG THINGS in a SHORT TIME.

Here’s a safe prediction: somewhere in the great State of Texas today, a remarkable thing is going to happen in a public school classroom.  A student is going to come alive with a vision for his or her future that the student did not have before.  A teacher will be the instrument that lit that fire.   An administrator will have supported that teacher to be that instrument.  The enlightenment will happen in an instant—much less than the time it took for Sam Houston and the boys to put Santa Anna on the run.  The teacher may not even see that anything extraordinary has happened. The administrator will be too busy with paperwork and problems to know about it.  Maybe the student will tell the teacher what happened. Maybe this will happen that day, or maybe at the 20-year reunion, or maybe the student will recount the magic moment to the teacher’s children at the teacher’s memorial service. Or maybe the student will never talk, and the teacher will never know what happened.

But this will happen today. We know this, because it happens every day.

DAWG BONE: ON THIS DAY, AND ON ALL DAYS, MAY GOD BLESS TEXAS.

Dawg Bones

Are we all straight on the procurement of goods and services?????

I rarely use the word “procurement.”  I cannot recall the last time that I asked My Sweetie “what goods and services do we need to procure from the grocery store?”  I don’t procure goods and services.  I buy stuff.  But life is more complicated for public school districts.  It’s not only more complicated—the entire process is encumbered with legal do’s and don’ts.  So our firm is offering an audio conference on:

PROCUREMENT OF GOODS AND SERVICES AND COMMON CONTRACT ISSUES—KEY POINTS TO GETTING WHAT YOU NEED.

This presentation will provide practical suggestions covering a wide range of issues.  Leading the discussion will be Winnie Dominguez from our San Antonio office, and Ann Mewhinney from Austin.  They make a great team (Winnie and Mewhinney—say it out loud!).  Winnie and Ann have a lot of experience with these issues, and know all sorts of things about this stuff that you need to hear about.

This audio conference will be conducted on May 10th from 10:00 to noon.  So sign up at www.walshgallegos.com.

DAWG BONE: AND TRY TO WORK “PROCUREMENT” INTO YOUR DAILY VOCABULARY.

Dawg Bones

Is Shiner Bock a drug?

It’s Toolbox Tuesday, which means we want to talk about the disciplinary options you have when dealing with students who have disabilities.  The Toolbox is an all day training program, highlighting ten “tools” that you can use to maintain order and safety, while also serving each student appropriately.  Tool #5 addresses the three “special circumstances” that authorize a swift disciplinary removal of the student for up to 45 school days.  One of the three “special circumstances” involves drug offenses.

The specific language in the regulation authorizes school administrators to remove a student who:

Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA [State Educational Agency] or an LEA [Local Educational Agency].  34 CFR 300.530(g)(2).

We notice that there is no mention of alcohol there.  There are plenty of federal laws and regulations that refer to “drugs or alcohol” but this one does not. So if a student has a six-pack of Shiner Bock at the school sponsored baseball game, can the principal invoke “special circumstances”?  We don’t think so.  The principal can certainly impose a disciplinary penalty for this violation of the Code of Conduct.  But “special circumstances”?  Nope.

This is the type of thing we review in detail in the Toolbox training. If interested, send me an email at jwalsh@wabsa.com.

DAWG BONE: SHINER BOCK IS GOOD AT A BASEBALL GAME. BUT IT VIOLATES THE CODE OF CONDUCT.

Dawg Bones

Parents’ “inflexibility” dooms their lawsuit.

Rockwall ISD has prevailed in a special education case decided by the 5th Circuit. The court concluded that the parents had taken an inflexible “all or nothing” approach at the ARDC meeting.   Dissatisfied with the district’s proposed placement of their daughter, the parents sought reimbursement for private school tuition. They won their case before the special education hearing officer, but Rockwall appealed into federal court. The federal district court ruled for the district, and now the 5th Circuit has affirmed.

I know that educators get tired of lawyers harping on the importance of written documentation. But this case is a great example of how important the written record is. The ARD minutes, testimony, letters and emails from the district enabled the court to conclude that the district took “a collaborative approach” to the IEP process, whereas “the record shows that the Parents had no intention of continuing with the ARDC unless RISD approved their proposal.”

The court’s opinion notes that the parents and their advocate frequently voiced their questions and ideas during the meeting, and that “RISD officials repeatedly revised the language of their proposal to incorporate the parties’ suggestions.”   From reading this opinion, I get the impression that the district was listening, open minded and flexible.  The court concluded that it was the parents who refused to return to the table unless the district agreed to their plan.  Districts are sometimes accused of going into ARDC meetings with a “predetermined” mindset. This case shows us that “predetermination” is a two-way street.

The case is Rockwall ISD v. M.C., decided by the 5th Circuit on March 10, 2016. We found it at 2016 WL 929445.

DAWG BONE: PREDETERMINATION WORKS BOTH WAYS. 

Dawg Bones

Are the Band Boosters required to register as a terrorist organization? Seems like they should….

I actually got this question from a very frustrated superintendent.  I think he was kidding, but….you never know.  In any event, this may be one of the questions to be addressed in our firm’s upcoming audio conference on BOOSTERS, PTAs, PTOs, THE GOOD, THE BAD AND THE DANGEROUS.   We know that you depend on the support of booster clubs and parent organizations, but there are some legal and financial concerns that you should keep in mind.  That’s why we’re doing an audio conference on this topic on APRIL 26TH, from 10:00 to Noon.  Attorneys Shellie Hoffman Crow and Alex Berk will highlight the key issues for you and offer practical suggestions.

DAWG BONE: SIGN UP FOR THIS AND OTHER WALSH GALLEGOS AUDIO CONFERENCES AT OUR WEBSITE: WWW.WALSHGALLEGOS.COM.

Dawg Bones

Texas Supreme Court clarifies “exhaustion” requirements

We are all eagerly awaiting the decision of our state Supreme Court in the school finance case.  In the meantime, the Court has already decided another school finance case….sort of. This one is from Clint ISD.  Parents sued the district claiming that internal inequities in funding violated the Texas Constitution. On April 1, the Supreme Court dismissed the case for lack of jurisdiction. The court held that the plaintiffs should have taken the issue up with T.E.A. before filing suit.

It would have been interesting if the court had ruled on the merits of this one. The plaintiffs alleged that the school board spent a disproportionate amount of the district’s funds in the town of Clint, to the detriment of the schools located in Montana Vista and Horizon City.  Rather than addressing that issue, the court tossed the case out on procedural grounds. The legal term is: exhaustion of administrative remedies. The plaintiffs were required to take their case to the Commissioner. Until they did that, the courts lacked jurisdiction.

It’s a lengthy opinion and lawyers will want to study it carefully.  This case provides a detailed analysis of T.E.C. Section 7.057 and the meaning of the term “the school laws of this state.”  In a nutshell, the court held that although the plaintiffs had alleged that the funding scheme violated the Texas Constitution, in reality, all of the violations tied into statutory provisions. Thus the court viewed the case as a challenge to decisions about “the school laws of this state” and so, Commissioner Morath would have jurisdiction, but the courts do not.

The case is Clint ISD v. Marquez, decided by the Texas Supreme Court on April 1, 2016. We found it at 2016 WL 1268000.

DAWG BONE: CASES INVOLVING “EXHAUSTION OF ADMINISTRATIVE REMEDIES” COME UNDER THE CATEGORY OF “BORING…BUT IMPORANT.”

Dawg Bones

But she was 18! It was consensual!! She was not my student!!!

I remember listening in on talk radio about a year ago and finding, to my surprise, that the radio host was staunchly defending a teacher’s right to have sex with a student…but only under the right circumstances. The circumstances were that 1) the student did not attend the school where the teacher taught; 2) they met entirely away from any school-sponsored activity, through a private martial arts course that the teacher ran; 3) the student was legally an adult—18 years old; and 4) the relationship was completely consensual.  The argument was that these two adults would be free to pursue a sexual relationship under any other circumstances. Why should the young woman’s status as a high school student change that?

According to the State Board for Educator Certification the student’s status as a high school student was a game changer. SBEC permanently revoked the man’s teaching certificate based on its conclusion that he had violated the Code of Ethics. At that time, the Code prohibited educators from having a sexual or romantic relationship with “a student.” But the term “student” was not defined. The man argued that the term did not include someone that he met privately when not “wearing his educator hat.”  The radio host seemed to agree with that. More importantly, so did Travis County Judge Gisela Triana. She overturned SBEC’s decision.

SBEC appealed that decision to the Court of Appeals, which ruled in favor of SBEC, thus resulting in the revocation of the teacher’s certificate.  The court noted that the term “a student” should be interpreted in its ordinary usage, and thus would include any person who was attending any Texas public school.  The case is SBEC v. Lange, decided by the Austin Court of Appeals on February 25, 2016.  You can find it at 2016 WL 785538.

It was probably in response to this case that SBEC amended the rules to define “student.”  Here is the current definition:

Student—a person enrolled in a primary or secondary school, whether public, private, or charter, regardless of the person’s age, or a person 18 years of age or younger who is eligible to be enrolled in a primary or secondary school, whether public, private, or charter.  19 T.A.C. 249.3(54).

Keep in mind that this is the SBEC rule. Violation of it can result in a revocation of certificate. The criminal law is a bit different.  Consensual sexual activity between a teacher and an adult  student is a crime only if the student attends a school in the same school district as the teacher, or the student participated in a school-sponsored extracurricular activity in which the teacher provided services.  Texas Penal Code 21.12(a).

Thus if Teacher Jones, who works in District A, has a consensual sexual encounter with an 18-year old who attends high school in District B, and they did not have contact with each other through a school-sponsored activity, Teacher Jones has committed no crime.  However, Jones stands to lose a valuable teaching certificate.  And we want to make it clear that the Dawg is not encouraging such relationships!  Just ‘splaining the law here. That’s what we do.

DAWG BONE: ALL THINGS CONSIDERED, IT’S BEST TO REFRAIN.

Dawg Bones

It’s Toolbox Tuesday! What do we do with kids who are using drugs or alcohol?

On Tuesdays here at the Daily Dawg we like to highlight issues and cases that are relevant to The Toolbox. The Toolbox is a full day training program focusing on ten “tools” designed to empower you to serve the kids with the most challenging behaviors.  One behavior that educators encounter frequently is student substance abuse.  What should we be doing when we can see that student use of drugs or alcohol is adversely affecting educational progress?

Obviously there is no one-size fits all answer to that question, but a recent case from Oakland, California provides a good illustration. I’m not going to give a detailed accounting of the facts, Suffice it to say this was a student who was doing poorly in school, and nothing the school was doing seemed to be working very well.  Tardies, unexcused absences, unfinished work, a depressed, withdrawn and dis-engaged student.   On top of all that was the use of drugs and alcohol, which the school was aware of.

When the student was in 9th grade, the district provided a behavior plan for the student.  Among other things, it called for the student to quit smoking pot.  “However,” the court noted, “again, no mental health services were provided.”  Attendance and engagement with school continued to decline.  Eventually, the parties reached a disagreement over placement for the student and the case went to a due process hearing.

From the court’s opinion, it sounds like the due process hearing focused a lot on the issue of substance abuse. An expert for the school testified that the drug use “must be treated first, outside the special education arena, before the district could assess and address mental health needs.” In other words—the parents have to get the substance abuse under control before we educators can do anything.  The hearing officer found this “unpersuasive” and indicative of an “outdated, compartmentalized approach to treatment.” Thus the hearing officer concluded that the district failed to provide FAPE by failing to assess the student’s need for mental health services, and its failure to provide them.

The court basically affirmed the hearing officer’s view. Key Quotes:

There is no dispute that the District has no legal obligation to provide substance abuse treatment to Student.

The administrative judge was persuaded that the “student’s substance abuse disorder is a function of his co-occurring mental health conditions and both must be treated for Student to be able to function in the school setting. The Court agrees with this conclusion…”

Those two quotes may appear contradictory.   Let’s unpack them a bit.  The court is saying that the district has no duty to fix the substance abuse problem. But neither should it ignore it or wait for it to be dealt with if it is adversely affecting the student in school.

What can be done with kids who abuse drugs or alcohol?  Certainly a BIP can address this.  BIPs are supposed to address behaviors that impede learning of the student or others.  Putting in the BIP that the goal is for the student to avoid drugs and alcohol is a good goal. In the Oakland case, the BIP established a goal that the student would refrain from the use of drugs. That’s a good start, but only a start.  What services will the school offer to help the student achieve that goal? What “positive behavioral interventions, supports and strategies” will the BIP provide?  Would counseling be a good service to provide?  A peer group?

This is one of many issues we discuss in the Toolbox training. If interested in a Toolbox day, just send me an email and we will find a date.  jwalsh@wabsa.com.

DAWG BONE: IF SUBSTANCE ABUSE IS THE BEHAVIOR IMPEDING LEARNING, THE BIP SHOULD ADDRESS IT.