All posts by Jim Walsh

Dawg Bones

I heard that a probationary contract can be nonrenewed at the end of its term “in the best interests of the district.” Any reason why we should explain why?

In response to your question, let’s consider the following hypothetical.  Trudy the Teacher is on a one year probationary contract.  Of course, as we all know, the board can decide to terminate Trudy’s service to the district at the end of the contract term “if in the board’s judgment the best interests of the district will be served by terminating the employment.”  T.E.C. 21.103(a).

Trudy is a Hispanic teacher in a largely Anglo school district.  She has made it known in the teacher’s lounge that she is a non-believer in a community that is overwhelmingly Christian.  She’s 57 years old.  She drives a VW Van from the 60’s to school every day that features two bumper stickers: ALL THE WAY WITH LBJ and FEEL THE BERN.  This is noticeable because the last time a Democrat was seen in this county was shortly after Reagan’s election.  Trudy’s a feisty one.  In just her first year in the district she filed two grievances that went all the way to the board.  Both were denied, 7-0.  Oh, and Trudy just got married to Henrietta, with whom she has lived for several years.

So, as the school year winds down, you deliver the news to Trudy that the board has voted to terminate her service to the district. She asks you why. You say, “Oh….the board just thinks it’s in the best interests of the district.” Trudy presses you: Why do they think that?  And you say: “They just do.”

The law does not require any further explanation, and it does not require that Trudy be given a hearing.  However, Trudy is not without legal options. She can file a grievance. She can file a complaint with the Office of Civil Rights or the EEOC.  In Trudy’s case, there are numerous avenues to explore.

She might allege that this has something to do with her ethnicity. She might allege that it’s discrimination based on religion. Or that it’s about her age. Or her political views. Maybe the board is retaliating against her because of those grievances.  Or maybe this is about her decision to exercise her constitutional right to marry Henrietta.

Now, in any of those instances, Trudy would bear the burden of proof, and it would not be easy for her to win her case. But if she pursues the matter, somewhere along the line the district will be required to answer her original question: But WHY does the board think it’s in the best interests of the district?   “They just do” will not be a sufficient response.

Don’t develop a false sense of security when dealing with a probationary teacher. They do have avenues of legal recourse. The district should have a reason for its decision that is 1) legitimate; 2) job-related; 3) non-discriminatory; 4) non-retaliatory and 5) supported by sufficient documentation to establish its credibility.  Whether you share that reason with the teacher at the time, and how you do that, is a separate question, and we encourage you to consult counsel about that.

DAWG BONE: PROBATIONARY TEACHERS DO HAVE LEGAL RECOURSE.

Dawg Bones

What Does it Take to be a Special Educator?

The 30th Annual TCASE/Legal Digest Legal conference is just around the corner. I’ve been privileged to be a part of this event from the beginning. It is something I always look forward to.

This year TCASE and my friends at the Legal Digest are promoting the conference with emails and tweets about “what special educators need to know” or “what they need to have.”

I’ll tell you what they need to have.  They need to have a great deal of pride in the moral and legal commitment our country has made to serve every child, regardless of the nature or the severity of the child’s disability.  They need to be proud to be a part of that.

Of course they need a lot of training, great people skills, strong relationships with general educators. All of that is important. But let’s put first things first.  Special educators are fulfilling our country’s legal and moral commitment to serve those who are often discarded or forgotten altogether.  They should be proud of that.

The annual conference will be held in New Braunfels on April 13th and again in Arlington on April 27th.  Sign up at http://legaldigestevents.com. I hope to see you there.

DAWG BONE: BE PROUD, SPECIAL EDUCATORS.

Dawg Bones

Aransas Pass Wins One in Federal Court

The case was about eligibility for special education.  The school provided special education services to the student for a while, but ARD-ed him out in May, 2013 on the basis of “no need.” The parent agreed with that at the time, but later sought to get the student back into special ed.  The ARD said no, and the parent sought a due process hearing. And then another one.  The district prevailed in both hearings and then the parent appealed to federal court.   The court ruled in favor of the district, ordering the case dismissed.  We can learn three things from the court’s decision.

First, in special education matters, the law starts out with an assumption that the school district did nothing wrong.  The parent bears the burden of overcoming that assumption.  Moreover, it remains this way even if the parent wins the special education due process hearing and the school district appeals into federal court.  The court put it this way:

Regardless of which party prevailed at the TEA level, the burden of proof is on the party challenging the school district’s decision, in this case, the Plaintiff.

In this case, the school district was victorious at the TEA level and at the courthouse, but it is interesting to note that the burden of proof is on the parent either way.

Second, testimony from experts who have not observed the child in the school setting is of limited value.  In this case the parent produced an MHMR counselor, but the court noted that she “had not observed [the student] in the classroom setting.”  Then there was the psychiatrist who “testified that he had not observed [the student] in a school setting or with peers” after the relevant date.  The parent also produced a psychologist who “never observed [the student] in an educational setting or with peers.  Neither had he spoken with any of [the student’s] teachers or administrators.”   The court noted that the psychologist “consulted only with the parent and did not attempt to corroborate her opinions or complaints or rule out other causes.” Presumably, these were three well qualified expert witnesses, but they simply lacked the personal knowledge to give testimony that would enable the parent to satisfy the burden of proof.

Third, some kids like being in the DAEP. This did not factor into the court’s decision, but it probably helped the district make its case that this was a student who did not need special education services.  It’s the assignment to DAEP that often leads to litigation, and yet, there are many students who do quite well in that more structured setting, and, in fact, like it.

The case is M.P. v. Aransas Pass ISD, decided by the federal court for the Southern District of Texas on February 25, 2016.  You can find it at 2016 WL 632032.

DAWG BONE: THIS IS WHY THERE IS A “D” IN ARD.

Dawg Bones

I heard that teachers don’t ever get dinged for abandoning a contract anymore. True?

Teachers can get “dinged” for abandoning a contract. Just ask Maritza Villamil-Rivera.  She was a teacher in Houston ISD until she submitted a resignation on January 15, 2015—smack in the middle of the school year.  Her last day with HISD was January 31, 2015.  Two days later she accepted a job with Harmony Charter Schools.

HISD complained to SBEC that the teacher had abandoned her contract without consent of the district, and should be disciplined.  A hearing was held at the State Office of Administrative Hearings (SOAH) on November 30, 2015.  The Administrative Law Judge’s (ALJ) critical ruling:

[The teacher] argues that she had good cause for resigning.  The record indicates that [the teacher] was suffering from health problems as well as anxiety and depression when she abruptly resigned from HISD. However, she made no attempt to secure HISD’s consent to her resignation. Instead, she chose to just walk away from a bad situation.

HISD offered testimony about what a bind it was in when the teacher quit in the middle of the year, and asked that the teacher’s certificate be suspended for a full year.  The ALJ thought that was too harsh.  He recommended an “inscribed reprimand” be placed on the teacher’s certificate.

That recommendation came to the SBEC board on February 12, 2016. The SBEC board approved all of the Findings of Fact and Conclusions of Law, except for the one about the penalty.  SBEC imposed the full year suspension, as requested by HISD:

In similar cases regarding contact abandonment without good cause and without mitigating factors, the SBEC previously has ordered a sanction of a one-year suspension. As there are no findings of mitigation in this case, the sanction of a one-year suspension is supported by the Findings of Fact and Conclusions of Law adopted herein.

Thus the teacher lost her certificate for one year. And that means that she “is not allowed to work as a teacher, substitute teacher, librarian, educational aide, administrator, or counselor for a Texas public school including an open enrollment charter school, or shared services arrangement.” Emphasis added.

The case is SOAH Docket No. 701-16-0141.EC.

DAWG BONE: EDUCATORS ARE EXPECTED TO SEEK CONSENT BEFORE RESIGNING IN MID-CONTRACT.

Dawg Bones

It’s Toolbox Tuesday! Tell us about a case involving ADHD

What starts in a middle school bathroom might end up in the 5th Circuit Court of Appeals.  That’s what happened in C.C. v. Hurst-Euless-Bedford ISD.

There was a major disagreement between the parties as to the facts that led to the student being sent to the DAEP.  But in the litigation, the district filed a Motion to Dismiss the case.  Under those circumstances, the court is required to rule on the Motion while assuming that the facts alleged in the suit are true.  We confess that we are a bit reluctant to share those allegations with you, but you Daily Dawg readers are a stout group of educators, so we expect you can handle the next paragraph.

The suit alleges that C.C. took a picture of another kid at the middle school. But it wasn’t just at the middle school—it was in the bathroom. And it wasn’t just in the bathroom--it was while the other kid was in a stall with the door open.  And he wasn’t just in the stall—he was holding up toilet paper smeared with feces.  The other kid laughed and said “Look at this!”  C.C. is apparently the kind of kid who knows a photo op when he sees one.

The word got out about this incident, and the assistant principal conducted an investigation.  He concluded that the student in the stall did not pose for a picture, and in fact, that this was an invasion of privacy and a felony.  According to the suit, the A.P. encouraged the other kid’s father to file criminal charges over the incident, which he did. Those charges were later dismissed, but C.C.’s parents believed that the school was overplaying its hand. In fact, they alleged that this episode was just a part of a school conspiracy to remove their son from the school by blowing up minor incidents into felony charges.

The A.P. convened the ARD Committee to conduct a manifestation determination and to consider an assignment of the boy to DAEP for 60 days.   The ARDC concluded that the picture-taking episode was not a manifestation of the student’s severe ADHD, and thus the DAEP placement was approved.  The parents filed a complaint with The Office of Civil Rights, alleging that they were the victims of retaliation, but the OCR disagreed.

The parents then filed for a special education due process hearing, which was also decided in favor of the district.

Then this lawsuit. By the time it reached the 5th Circuit there was only one issue left to be resolved: was the district guilty of disability-based discrimination?

The Court of Appeals held that the case should be tossed out.    The court’s brief opinion tells us that “The Plaintiffs did not sufficiently plead discrimination under Section 504.”  While the parents used the word “conspiracy,” they “did not sufficiently plead that this conspiracy was based on CC’s disability.”

We think those of you who are involved in making manifestation determinations involving students with ADHD will find this part of the court’s ruling particularly interesting:

The Plaintiffs’ complaint merely states that his ADHD resulted in CC having difficulty “Executing Functioning, which affects his ability to manage his social environment, make good decisions and communicate in an appropriate manner.” If that conclusory statement were enough to plead discrimination, any plaintiff with ADHD could attribute any misconduct, no matter how severe, to the disability.  In addition, the Plaintiffs’ allegations show that the Defendants did not transfer CC until after the MDR [Manifestation Determination Review] determination, which concluded that CC’s behavior was not a result of his disability.

This case is a good reminder about the basics of MDRs.  The MDR is a procedure designed to make sure that a student is not punished for having a disability.  If behavior of the student has a “direct” and “substantial” relationship to the disability, then that behavior is a manifestation. But the mere fact that a student has a condition that affects his ability to make good decisions doesn’t quite cut it.

We go over cases like this in connection with The Toolbox Training. The Toolbox is an all day program for campus administrators and special education staff.  We review ten “tools” that comply with the law and empower you to serve students appropriately and safely. If interested in a Toolbox program, send me an email at jwalsh@wabsa.com.

The case of C.C. v. Hurst-Euless-Bedford ISD was decided by the 5th Circuit on March 9, 2016.   We found it at 2016 WL 909418.

DAWG BONE: LET’S KEEP THE DOOR SHUT ON THAT BATHROOM STALL.

Dawg Bones

Small potatoes bribery scheme is costly to teacher

It’s not like the art teacher was going to get rich off this scheme.  But it did provide a little extra income.  Unfortunately, that little bit of extra cash turned out to be very costly. The teacher’s certificate was revoked.

The art teacher agreed to falsify community service hours for kids in exchange for a small fee--$1.00 per hour.  So if a student was ordered by the court to do ten hours of community service, the student could either do the ten hours, or pay the teacher $10.  The falsified documents were then turned into the court that had ordered the community service.

This went on for about a year, and involved about 30 students at two high schools in North Texas along with some of their parents. It all came apart on April 22, 2013, when a police officer and some school officials confronted the teacher.  The man promptly admitted the truth of the allegations and resigned. He had been a teacher at the high school for 13 years.  One month later, he was charged with the criminal offense of tampering with government records.  He eventually pled guilty and was given deferred adjudication with a fine, community service and community supervision.

By the time this matter reached the State Office of Administrative Hearings (SOAH) the facts were pretty straightforward.  The issue was whether or not the teacher’s certificate should be revoked.  The teacher did not dispute the charges. But he offered testimony from his sister, a minister, and two teachers along with affidavits from 10 other people, all of whom supported the man as a person of good moral character who had made a mistake.

The SOAH Administrative Law Judge recommended that the certificate be revoked and the SBEC approved that recommendation.  In part, this was based on a Conclusion of Law that “The offense of Tampering with a Government Record is a crime involving moral turpitude….because it involves improper conduct including dishonesty, fraud, or deceit.”  Furthermore, “The offense to which [the teacher] pleaded guilty is an offense directly related to the duties and responsibilities of the education profession.”

The case is Docket No. 701-15-5134.EC.  It’s sad to see a veteran teacher lose the certificate that he worked hard to obtain.  But this case is a good reminder about the Educator Code of Ethics and the standards to which educators are held accountable.

DAWG BONE:  CRIMES OF “MORAL TURPITUDE” ARE GENERALLY ABOUT DISHONESTY—NOT NECESSARILY A LOT OF MONEY. 

Dawg Bones

Spring Break!! Woo Hoo!!!

As you read this, I’m on a choo choo train, somewhere between San Francisco and Chicago.  I got an early start on spring break, and am riding the California Zephyr with Mrs. Dawg.  But I know that most of you will be on break next week, so we are going to suspend the Daily Dawg for a week.

But I leave you with one reminder and one request.

Reminder: next Thursday is St. Patrick’s Day. Celebrate accordingly.

Request: How is this Daily Dawg thing working for you?  What would you like more of? Less of?  Suggestions for improvement?  Please let me hear from you at jwalsh@wabsa.com.

Enjoy your break!  The Daily Dawg returns on Monday, March 21.

DAWG BONE: FAITH AND BEGORRAH!  ST. PATRICK’S DAY IS UPON US AGAIN!!

Dawg Bones

Libel! The nogoodniks libeled me!! What do I do???

“Defamation” is defined by the online dictionary as “the act of damaging the good reputation of someone.”  It comes in two forms.  If you do it in writing, we call it “libel.”  If it is purely verbal, it is “slander.”

Not all defamatory statements are legally actionable.  That’s because there are all sorts of exceptions and defenses, the most frequently cited one being: “but it’s the truth.”  In other words, if you write or say something about someone that damages their good reputation, but is true, then it is “defamatory” but it is not legally actionable.  Your suit for slander or libel will fail.

You can also say pretty much whatever you want about a person if it is couched in terms of an opinion, rather than a factual statement.  To say “Our superintendent has a criminal record” is an assertion of a fact. If the statement is not true, it could be legally actionable. But to say “Our superintendent strikes me as a shady character” is an opinion.  Not actionable.

We offer this brief primer on the law of defamation to introduce you to the case of Kirk v. Plano ISD.  Mr. Douglas Kirk felt that he had been defamed by the PISD and four of its employees.  The court’s opinion tells us nothing about the factual background, so we don’t know who said what, and why Mr. Kirk felt that he had been defamed. Acting without the benefit of legal counsel, Mr. Kirk filed a libel suit against the district along with the board president, a principal, a teacher, and the director of safety and security.

The trial court tossed the case out before it got off the ground, and the Court of Appeals affirmed that decision.  Mr. Kirk thus learned a lesson about governmental immunity.  The district’s attorneys first filed a Motion asking the court to dismiss the four individuals.  The court did so.  We have a law in Texas that requires plaintiffs to decide whether to sue the school district, or the individuals who work for the school district. You can’t do both. Citing an earlier case, the court noted that “A plaintiff must proceed cautiously before filing suit and carefully consider whether to seek relief from the governmental unit or from the employee individually because the decision regarding whom to sue has irrevocable consequences.”  Texas Bay Cherry Hill, L.P. v. City of Fort Worth.  257 S.W.3d 379 at 401 (Tex. App.—Fort Worth 2008, no pet.).

Next, PISD lawyers asked the court to dismiss the case against the district as well, claiming that the court had no jurisdiction.  Again, the court agreed with this. This was based on governmental immunity: “When a plaintiff sues a governmental entity or official, he faces the threshold hurdle of affirmatively demonstrating the trial court’s jurisdiction by alleging a valid waiver of governmental immunity.”  Mr. Kirk could not get over that hurdle.  School districts have immunity from suits based on libel or slander.  The Texas Tort Claims Act lays out the very limited circumstances in which a school district’s immunity is waived. Those involve the negligent use or operation of a motor vehicle—not defamatory statements by school employees.

The case of Kirk v. Plano ISD was decided by the Court of Appeals in Austin on February 3, 2016.  We found it at 2016 WL 462742.

DAWG BONE:  SUITS OVER SLANDER OR LIBEL AGAINST A SCHOOL DISTRICT ARE LIKELY TO BE DISMISSED EARLY ON.

Dawg Bones

One more difference between employment in the public sector vs. employment in the private sector

Texas is an “at will” employment state.  The general rule is that employees are hired “at will” which means they can be fired at any time without good cause.  Of course we have both federal and state laws that prohibit terminating employment on the basis of certain protected characteristics, like race, sex, religion, age, disability.  But other than that, most employees in Texas serve at the pleasure of their employers.  Teachers with contracts are a notable exception to the general rule.

Another exception was created by the Texas Supreme Court in the case of Sabine Pilot, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985).  In the Sabine Pilot case our Supreme Court held that the employer may not fire an employee for refusing to perform an illegal act.

But a recent decision from Beaumont ISD demonstrates that the Sabine Pilot case does not mean the same thing in the public sector as it does in the private sector.  An at-will employee of a school district does not have the same protection as his or her counterpart in the private sector.  In the Beaumont case, Mr. George Thomas, Jr. asserted that the district fired him for refusing to perform an illegal act.  He alleged that the district was keeping false records regarding student attendance. He alleged that he refused to go along with this, and for this he got canned.

Is this a valid claim under the Sabine Pilot case? We will never know. The district filed a “Plea to the Jurisdiction” asserting that the court should dismiss the case from the get-go because the court had no jurisdiction.  BISD pointed out that it enjoyed governmental immunity—immunity from suit, not just from liability—and this claim was barred by that immunity.

The state district court did not agree with that, but the Court of Appeals did.  Citing six earlier cases, the court held that Sabine Pilot did not waive BISD’s governmental immunity.  Indeed, governmental immunity can only be waived by the legislature—not a court.  Thus in practical terms, the Sabine Pilot case means that a private employer cannot fire someone for refusing to perform an illegal act.  As for a governmental employer….no liability for doing the same thing.

The case of Beaumont ISD v. Thomas was decided by the Court of Appeals in Beaumont on January 28, 2016.

DAWG BONE: “AT WILL” IN AN ISD IS MORE “AT WILL” THAN IT IS AT WAL-MART.

Dawg Bones

It’s Toolbox Tuesday! Does the new federal education law (ESSA) say anything about special education discipline?

On Tuesdays around here we like to highlight The Toolbox. This is an all day training program focused on the disciplinary options with students with disabilities.  Does the new federal law speak to this?  No—certainly not directly.  The details about the discipline of special education students are contained in the Individuals with Disabilities Education Act (IDEA).  Congress has not amended IDEA since 2004, and we don’t hear much rumbling about that happening this year.

However, there is one provision in the new federal law that we think is important and relevant with regard to your student discipline program.  The new federal law is The Every Student Succeeds Act, which replaces the No Child Left Behind Act. So it’s out with NCLB and in with ESSA.  ESSA, like its predecessors, makes federal money available to states and local districts that meet certain requirements.  One major requirement is that the state must submit a plan outlining how it will serve students, and how it will implement the components of the law. That’s where we found the one little nugget that addresses student discipline.

Section 20 U.S.C. 6311(g)(1)(C) now states:

Each State plan shall describe…how the State educational agency will support local educational agencies receiving assistance under this part to improve school conditions for student learning, including through reducing—

(i)   incidences of bullying and harassment;

(ii)  the overuse of discipline practices that remove students from the classroom; and

(iii) the use of aversive behavioral interventions that compromise student health and safety.

The law also requires a “State Report Card” that will disclose how much the state and each district is using suspension (both out of school and in-school), expulsion and contact with law enforcement.

Notice the law speaks of the “overuse” of practices that remove students from the classroom. There is nothing in this law that prohibits the use of the traditional tools of student discipline.  But the law seeks to move us away from an “overuse” of these tactics, toward practices that focus on inclusion and the restoration of a healthy school climate.

This new law provides your district a great opportunity to explore the use of Restorative Practices.  Restorative Practices focus on inclusion, rather than separation; relationship building, rather than crime and punishment.  So if you have not yet looked into Restorative Practices, please do. It’s the wave of the future and the future starts right now.

DAWG BONE: ESSA WILL NUDGE US TOWARD RESTORATIVE PRACTICES WITH STUDENTS.