All posts by Jim Walsh

Dawg Bones

You say the student was “upset” about the bullying, but that this is “irrelevant”? How can that be?

Here is an eye-catching line in a recent recommendation from a Texas magistrate:

Critically, whether K.S. was upset by the conduct of fellow students is not relevant to the Court’s determination of whether the alleged harassment is actionable under Title IX.  “The standard is not subjective; instead, it is whether the harassment was severe, pervasive, and OBJECTIVELY unreasonable.”  Emphasis in the original.

We should point out right away that the student being “upset” IS relevant to principals and assistant principals who are trying to prevent bullying.  So don’t take this Title IX legal standard and apply it to the day-to-day operations of your school.  If a student is harassed, picked on, bullied, and is “upset” about it, school officials need to take action. Investigate; take corrective action; take steps designed to end the harassment, prevent its recurrence and repair any damage.

Leave that “it’s irrelevant” argument to your lawyer, if it should end up in court.  This one did, and the magistrate judge has recommended that the court dismiss the case against the district. The student’s lawyers did not present sufficient evidence to show that the case deserved to go to a trial.  The recommendation notes that no reasonable jury could conclude that the student was deprived of educational opportunities, or that the district was “deliberately indifferent.”  The student’s grades went down a bit, but he was passing his classes.  He had quite a few absences, but most of those were related to medical problems. He spent some time in ISS and DAEP—but that was due to his misconduct, rather than harassment by others.  There were plenty of reports of the boy being picked on…but the district investigated them and took appropriate action.

In short, this is yet another sad case of middle school kids behaving badly.  Fortunately, the law does not impose legal liability on school districts when that happens. The burden of proof is far more demanding, as we can see from the observation that the student being upset was not even relevant.

The case of Thomas v. Northwest ISD is still pending in the Eastern District of Texas. The recommendation of the magistrate judge was made on December 1, 2015. We found it at 2015 WL 9450853.

DAWG BONE: WHAT IS “IRRELEVANT” IN COURT MIGHT BE VERY “RELEVANT” IN MIDDLE SCHOOL.

Dawg Bones

If the teacher thought the use of force was reasonable does that mean that it was reasonable?

This is our third entry this week on the case of Dallas ISD v. Peters, a case involving the termination of an assistant principal.  Earlier, we pointed out how the court dealt with the fact that the board voted on the matter in closed session, which they should not have done.  If you want to know why that was not enough for the A.P. to win his case, you have to go back and read the Daily Dawg for Monday and Wednesday. Today, we’re going to discuss the substance of the case—did the A.P., in fact, use excessive force?

The independent hearing examiner found the man guilty of this charge.  On appeal, the A.P. argued that the Texas Education Code granted him immunity for the use of force.  Section 22.0512(a) says that a professional employee “may not be subject to disciplinary proceedings for the employee’s use of physical force against a student to the extent justified under Section 9.62, Penal Code.”

That Penal Code provision authorizes non-deadly force by educators “when and to the degree the actor reasonably believes the force is necessary” to further the “special purpose or to maintain discipline in a group.”  There has been much confusion and considerable litigation over the phrase: “the actor reasonably believes.”  Just what, exactly, does that mean?

Here is the Key Quote, and the takeaway from this case:

Reasonable belief involves an objective—not subjective—standard defined as “a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.  Moreover, while the acts of the teacher in using force must be viewed from the teacher’s perspective, this does not mean that the teacher’s testimony must be believed and it does not mean that if a teacher believed his actions were rational the school district must determine the teacher had a rational belief.

Mr. Peters, the A.P. in this case, testified that he thought that his physical restraint of the student was reasonable.  But as the Key Quote illuminates, that’s not enough.  The hearing examiner laid out the facts in detail, along with the testimony of three educators who believed the use of force was “inappropriate, unreasonable, and unnecessary.”

What happened?  Fact findings made by the hearing examiner tell us that 1) the girl left the classroom without permission; 2) in an effort to get her to return to class and apologize to the teacher, the A.P. used physical restraint, forcefully pinning her arm behind her back; 3) the struggle between the two resulted in the girl’s head and body hitting school lockers; and 4) the girl never presented a risk of danger to the A.P. or anyone else. It did not help Mr. Peters’ case that when the 15-year old girl, who stood less than five feet tall, informed him that she was pregnant, his response was “I don’t care.”

The independent hearing examiner found this to be sufficient evidence of excessive force, thus forming “good cause” to justify terminating the man’s employment. The Commissioner of Education found substantial evidence to support the board’s decision, and now the Court of Appeals has affirmed.

The case of Dallas ISD v. Peters was decided by the Court of Appeals for the 5th District of Texas (Dallas) on December 14, 2015.  It can be found at 2015 WL 8732420.

DAWG BONE: A TEACHER’S USE OF PHYSICAL FORCE WITH A STUDENT WILL BE JUDGED BY OBJECTIVE STANDARDS, NOT THE SUBJECTIVE VIEW OF THE TEACHER.

Dawg Bones

How can the board get away with taking action in closed session? Isn’t that a violation of the Open Meetings Act?

Monday we told you about Dallas ISD v. Peters, a case in which the board voted to terminate an assistant principal’s contract.  The hitch was that the board voted to do this while still in closed session.  Whoops!!

As we explained on Monday, the Court of Appeals brushed this aside, because the case was brought under the Education Code, not the Open Meetings Act.  Monday’s Daily Dawg explained why that was important.

But the A.P. also filed a straightforward suit under TOMA, claiming that this vote in closed session was void. Therefore, he argued, he was never properly terminated and should be put back to work with back pay.

The Court ruled against him on that point also.  The Court held that the A.P. did not have “standing” to bring this case.  The Court noted that our Texas Courts of Appeal have disagreed about what it takes to have “standing” under TOMA.  But in this case, the Court held that no possible theory would avail the A.P.  The Court noted that the main thing TOMA guarantees the general public is 1) notice of the meeting; and 2) an opportunity to observe to vote.  The A.P. in this case had notice, and he observed the vote, having been present in the closed session when the vote took place.  Thus he did not suffer an injury, and was not in a position to sue over the TOMA violation.

Lawyers will want to read this part of the Court’s analysis carefully, especially the description of the split among the courts as to the proper standard for “standing.”

Now that I have written about this case twice, I hope you are interested in knowing why this guy got canned.  If so, you’ll need to tune in tomorrow for a discussion of the proper, and improper, use of force by educators.

The case of Dallas ISD v. Peters was decided by the Court of Appeals for the 5th District of Texas (Dallas) on December 14, 2015.  It can be found at 2015 WL 8732420.

DAWG BONE: REGARDLESS OF WHAT YOU JUST READ, DON’T EVER LET THE BOARD TAKE A VOTE IN CLOSED SESSION.

Dawg Bones

It’s Toolbox Tuesday! We have a parent who wants us to write into the BIP that the kid can bring her pet turkey to school. Waddyathink?

We did not expect to get a turkey question today. We were anticipating a groundhog query. But be that as it may, let us discuss turkeys in the context of The Toolbox.

The Toolbox is a set of 10 “tools” available to schools when dealing with disruptive students with disabilities. Tool #1, which we emphasize is the most important tool, is the development and implementation of a BIP—a Behavior Intervention Plan.

In The Toolbox training, we encourage you to be creative in crafting a BIP for a student. So we would rarely rule something out from the get-go. But a turkey?  Really????

Perhaps this parent read the story of the Delta passenger who was allowed to bring a turkey on board the airplane.  Here’s the picture:

turkey

But it’s important to point out that airlines have to be more like Noah than schools do. The federal Air Carrier Access Act requires carriers to permit an “emotional support or psychiatric service animal” on board.  The regulation excludes snakes, other reptiles, ferrets, rodents and spiders, but most everything else is permissible, including turkeys.  A “service animal” for school purposes can only be a dog or a miniature horse.

But you know the general rule with special ed. Take it to the ARDC and ask: is the turkey necessary for the provision of FAPE?  We kinda doubt it. We think turkeys are not NECESSARY for anything except Thanksgiving. But with special ed, you never know.  So take it to the ARD. Serve turkey sandwiches.

DAWG BONE:  WE THOUGHT OF MANY MORE TURKEY-RELATED WISECRACKS, BUT DECIDED TO STAY ON THE HIGH ROAD TODAY….MOSTLY.

Dawg Bones

The board voted to fire me while in closed session. They can’t do that….right???

A decision from the Court of Appeals in Dallas validates the termination of an assistant principal’s contract, even though the board voted to terminate the man while in closed session. This may surprise you, as it is well known that official action of the board must be taken in open session. If the board happens to take an official vote while behind closed doors, isn’t that action void?

First, a bit of background. The board in Dallas ISD voted to terminate the assistant principal’s contract based on the recommendation of an independent hearing examiner who concluded that the man used excessive force in dealing with a student.  The board considered the case in closed session, at the request of the A.P.  Attorneys representing the A.P. were present during the closed session.  Those attorneys, without objection, watched the board take its vote to terminate the contract while still in closed session.  The A.P. appealed the termination to the Commissioner, who upheld the board’s action.

Then the A.P. appealed to district court. The district court sided with the A.P.  The judge concluded that there was substantial evidence in the record to justify the termination of the man’s contract, but because the board had screwed up and done it in closed session, the action was void.

The Court of Appeals reversed that decision, thus upholding the DISD’s board action to terminate the contract.

How can that be? Taking a final vote in closed session is a clear cut violation of the Texas Open Meetings Act.  The court was well aware of that, but pointed out that this case was not a “free-standing complaint” under the Open Meetings Act, but rather, an appeal of the Commissioner’s decision. Therefore, the guiding law is the Education Code.  With regard to teacher termination and nonrenewal, the Education Code includes a sort of “no harm, no foul” principle.  It states that  a decision of the Commissioner cannot be overturned based on a procedural irregularity “unless the court determines that the irregularity or error was likely to have led to an erroneous decision by the Commissioner.”  In other words: did it make any difference?  Did taking the vote in closed session lead to the wrong result?

No. It did not. The result was proper, it was just improperly executed. Open or closed, the man was going to be terminated, and there was substantial evidence to support that decision.

The A.P.’s lawyers must have anticipated that turn of events because they were smart enough to also file a “free-standing complaint” under the Open Meetings Act.  Here, there is no “no harm no foul” standard to hide behind—you either complied with the Open Meetings Act or you didn’t.

How the court dealt with that issue is worthy of a separate Daily Dawg entry.  So we will keep you hanging on that one, but we can tell you right now that the A.P. is not going back to work in Dallas ISD. Stay tuned for details on Wednesday!

The case of Dallas ISD v. Peters was decided by the Court of Appeals for the Fifth District (Dallas) on December 14, 2015.  It can be found at 2015 WL 8732420.

DAWG BONE: GETTING FIRED IN CLOSED SESSION MIGHT BE LESS EMBARRASSING, BUT IT STILL HURTS.

Dawg Bones

“Redundant skin”? Does that mean what I think it means?

So I went to see the dermatologist yesterday for my annual checkup.  I’m happy to report that all is well.  No sign of skin cancer.  No need for another nosectomy like I had last year.

But as the doc was closely examining my neck, she remarked “Hmmmm….I think that’s nothing to worry about.  Just some redundant skin.”

REDUNDANT SKIN!  What an outstanding euphemism!!  I must remember this the next time someone suggests that I’m developing a double chin. Or just getting kinda fat.  “No, I will say.  But I do have some redundant skin.”

Euphemisms are handy. They frequently enable us to avoid or minimize awkward moments in polite company. But euphemisms can cause trouble also.  I heard a story of an ARDC meeting where the participants danced around the student’s inappropriate sexual behavior.  No one wanted to call it what it was, especially with the parent present. So the student’s BIP just indicated that there were some “new behaviors” that needed to be worked on.

That would not be a good use of a euphemism.  When talking to parents about their kids’ performance and behavior in school, we need to shoot straight.  So if the student is exposing himself in class, say so.  If the student regularly uses the F-word (there’s a nice euphemism), say so—don’t say he uses “inappropriate language.”  No one know what that means. We have an obligation to be direct and honest with parents. Failure to be honest and direct is disrespectful to parents, and in some instances (i.e., ARDC meetings) it might even have legal consequences.

DAWG BONE: “REDUNDANT SKIN” RANKS RIGHT UP THERE WITH “YOUR CHILD’S SKILLS ARE EMERGING.”

Dawg Bones

This is why we will have cameras in special education classrooms next year…

You want to know why we are going to have cameras in many special education classrooms next year? Consider the case of Domingo v. Kowalski, recently decided by the 6th Circuit Court of Appeals.

This case is one of those sad situations in which a teacher’s aide alleged that her supervising teacher was abusing children. Where did this happen?

Kowalski’s class met in a church where Kowalski went largely unobserved by other teachers or her direct supervisors, aside from a few weekly visits from behavioral and therapeutic specialists.  Further, due to the students’ limited verbal capacities, their parents relied on Kowalski’s daily classroom “journal” to keep them informed of the students’ progress.  Kowalski did not reference any of the above-described teaching techniques [the things alleged by the aide] in her classroom journal, or otherwise share them with the students’ parents.  [The aide] testified that Kowalski even appeared to actively conceal her activities….

There have been too many similar cases, too many similar allegations by teacher aides and/or parents.  That’s why there will be cameras in the classroom next year.

In this one, the court decided the case in favor of the teacher, her supervisors and the school district.  The court noted that the teacher’s actions, as alleged by the aide, were abusive. But actions that are “abusive” are not always “unconstitutional.”  The parents sought relief in this case under the 14th Amendment, and that gives them a very difficult burden. They failed to satisfy it, and so, the case was dismissed.

But the case is yet another reminder of what can happen in a classroom for low functioning students that goes unobserved for too long.  Concerns over that very issue are what caused our legislators to mandate cameras for classrooms, when requested.

The case of Domingo v. Kowalski was decided by the 6th Circuit Court of Appeals on January 7, 2016.  You can find it at 2016 WL 76213.

DAWG BONE: KEEP A CLOSE EYE ON THOSE SELF CONTAINED CLASSROOMS.

Dawg Bones

We are starting up an educational foundation. Can we let them use our school office space? Our staff?

Many districts are making good use of an educational foundation to provide support, both financial and otherwise, for teachers and kids.  In fact, due to increased student enrollment, a rise in the number of students with special needs, and less money from the state, an educational foundation becomes almost a necessity.  The foundation and the school are united in a common mission, but it is important to keep them separate for legal and accounting purposes.

Public school resources can only be used for public educational purposes.  There are many non-profit and charitable organizations in your community that serve students or families and thereby benefit the overall mission of public education. But your board of trustees is required to make sure that public school resources—money, property and staff—are used only for the public schools and under the control of public school authority.

So it’s important to have a contract between your foundation and the school, setting out the parameters of the relationship.  If the foundation is allowed to use school office space, equipment, school logos, or have school staff perform some of its work, you will need to have a contract that expresses the public educational purpose for that. You will also need to maintain adequate controls.  The contract should be approved by board resolution, approving the arrangement with the foundation based on the board’s determination that it serves a proper public purpose.

We can help with this.  If you are thinking of starting up a foundation, or you have questions about your existing foundations, give us a call at Walsh Gallegos Trevino Russo & Kyle, P.C.

DAWG BONE: KEEP YOUR FOUNDATION AND YOUR SCHOOL SEPARATE WITH A CONTRACT.

Dawg Bones

It’s Toolbox Tuesday! Tool #3 is about moving a student to a more restrictive environment. Isn’t that hard to justify?

The Toolbox is a set of 10 tools designed to help school administrators and teachers serve students with disabilities appropriately and safely, even when they present challenging behaviors.  Tool #3 is an Educational Change of Placement Without Parental Agreement.

Is it hard to justify such a thing?  Yes.  Tool #3 is the first of the ten tools that involves disagreement between the parent and the school.  We know that you work hard to maintain consensus with parents, as you should. But sometimes it becomes impossible to both serve the student appropriately, and maintain harmony with the parent. So Tool #3 is available in those cases.

Let’s consider a typical example.  Matthew is an 8-year old with an intellectual disability.  Matthew has been in the mainstream third grade classroom all year, with an inclusion teacher coming into the classroom for parts of the day to help him out.  Now it is late January, and the teachers who work directly with Matthew are all of the opinion that his current placement is not working out well.  He is falling farther and farther behind his peers in the mainstream, and his behaviors are becoming a major problem.  Parents of other students are calling to complain when they hear stories of Matthew’s classroom tantrums.  We feel that we have implemented his IEP and BIP faithfully. We have worked diligently to enable him to be successful in this mainstream classroom. But it’s not working, either for Matthew or the rest of the class.  The school decides to propose a change of placement—moving Matthew into the Life Skills class for about half of the day.

If the parent agrees with that decision, you are using Tool #2—an Educational Change of Placement with Parental Agreement.  If the parent does not agree, then you are using Tool #3.

The school should use this tool only when school staff feel strongly that they are doing the right thing.  The parent will be entitled to a due process hearing to challenge the proposed change of placement. The “stay put” rule will keep Matthew in the mainstream classroom while that hearing is conducted.  The school will need to convince the hearing officer that the change of placement is appropriate.  To do this, the school will need to produce evidence that 1) it made a good faith effort to serve Matthew in the LRE; and 2) there are services that can be provided in Life Skills that Matthew needs, and that cannot be provided in the mainstream.

DAWG BONE: DON’T USE TOOL #3 UNLESS YOU ARE SURE YOU ARE DOING THE RIGHT THING.