All posts by Jim Walsh

Dawg Bones

It’s Midwinter! Welcome to Austin!!

Austin is loaded with school superintendents this morning.  It’s Midwinter.  My day will start with the annual Region 13 breakfast, followed by considerable schmoozing and “hihowareyous” to those I have seen somewhere on the road this past year.

Our firm is hosting its annual reception tomorrow night, and if you are a subscriber to the Daily Dawg, you are cordially invited to attend. We gather from 5:00 pm to 6:30 at Fleming’s downtown, just a block from the convention center.  Food and drink for all.

Our firm’s annual midwinter reception is a longstanding firm tradition, going back to the days when our office was on Barton Springs Road.  When Joe Hairston and I looked over that space as a possible future office location, Joe immediately saw the possibilities. He said, “You know in January, every superintendent in the state will be in the Palmer Auditorium right across the street. We could host a reception in our office.”  Thus was born our Midwinter Firm Reception.

Now the convention is in the Austin Convention Center and we take over Fleming’s for the event.  It’s one way we can say thank you to our clients, and to honor you for the hard work you do. Our firm is all about Helping the People Who Help the Kids. That would be you—The People Who Help the Kids.  We hope to see you at Fleming’s.

DAWG BONE: YES, THERE WILL BE SHRIMP.

Dawg Bones

Is “hearsay” OK at a nonrenewal hearing?

On January 6th, the Daily Dawg informed you of a decision from the Commissioner’s office that approved of “liberal hearsay exceptions” when the school board conducts a nonrenewal hearing.  Manuagwu v. Edgewood ISD.  Now we have a decision from a Texas appellate court that does likewise.

The case involved the nonrenewal of a teacher based in part on allegations that he had made inappropriate remarks to some of his students.  School administrators investigated this by interviewing a number of students. They also collected statements written by the students about events that happened at school.

At the nonrenewal hearing, the district chose not to call any of the students to testify. You can understand why.  It can be particularly difficult for kids to be asked to give testimony in a formal proceeding about their teacher.  So the district chose not to go that route. Instead, the statements of the students were introduced into evidence, and the administrators testified about what the students told them.

Not surprisingly, the lawyer representing the teacher objected to all of this evidence as “hearsay.”  In effect, the district was introducing into evidence the statements of kids who were not present at the hearing. The teacher’s lawyer had no opportunity to question them.  This is the essence of what we mean by “hearsay.”  Can the school board rely on such evidence?

The Court of Appeals said that it can.  The court held that the Texas Rules of Evidence simply don’t apply to a nonrenewal hearing conducted by a school board.   That being the case, the board was free to consider the statements of the kids “to the extent that it was not arbitrary, unreasonable, or otherwise unlawful to do so.”

The court pointed out that the administrators asked open-ended questions from randomly selected students.  Furthermore, the district had no power to compel the kids to testify, whereas the teacher could have at least asked them to do so.  The court concluded that there was nothing “arbitrary, unreasonable or otherwise unlawful” here. Bottom line: the evidence was properly admitted into evidence, and it formed “substantial evidence” to support the board’s decision to nonrenew the teacher’s contract.

Keep in mind that school boards can hear a nonrenewal case themselves, or they can direct that the parties use the independent hearing examiner process.  The independent hearing examiner process does require compliance with the Texas Rules of Evidence, so the holding of this case is limited to hearings actually conducted by the school board.

The case is Los Fresnos CISD v. Vazquez, decided by the Texas Court of Appeals, 3rd District (Austin) on December 30, 2015.

DAWG BONE: WHEN THE BOARD CONDUCTS THE NONRENEWAL HEARING, THE RULES OF EVIDENCE DO NOT APPLY. BUT THE RULES OF FAIR PLAY DO.

Dawg Bones

Let me tell you about the strangest provision in the new education bill.

It’s going to take awhile to absorb all of the details of the Every Student Succeeds Act (ESSA). But one provision jumped out at me. It encourages the president to grant a posthumous pardon to former heavyweight champion, and Texan, (Galveston) Jack Johnson.

This has been a pet project of Senator John McCain for quite some time. He was not successful in convincing President Bush (W) to grant the pardon, but thought the odds would be better with President Obama.  Johnson was probably our nation’s most famous African American in the first decade of the 20th Century.  He was the first of many African American heavyweight champs.   Senator McCain and others assert that Johnson’s criminal conviction for transporting women across state lines for immoral purposes was really a reflection of the racism of the times.  Johnson did, indeed, travel across state lines with a woman. But she was his girlfriend.  She was also white.  It was well known that Jack Johnson enjoyed the company of white women and he made no secret of it.  Suffice it to say, this was not well received in 1913 when Johnson was convicted.

President Obama has likewise turned down this request, but now that the Congress has expressed “the sense of the Senate” that Johnson should be pardoned, perhaps it will happen.  Here is a portion of the letter that Senator McCain sent to the President:

As this law makes clear, a pardon would expunge this racially-motivated abuse of authority from our nation’s criminal justice history and affirm Jack Johnson’s athletic and cultural contributions to our society. And, as acknowledged in a recent New York Times column, “in a nation that promotes itself as the land of the free, there are few things more important than…correcting injustices like the imprisonment of Johnson.

There is a movie about Jack Johnson that I saw many years ago—“The Great White Hope,” starring a very young James Earl Jones.

Sounds like a good cause to me, but you have to wonder: how did this end up in a bill addressing federal aid to education?

DAWG BONE: POLITICS IS NOT ALWAYS LINEAR.

Dawg Bones

Should the principal be held to a higher standard?

You should take a look at the new rules proposed by SBEC pertaining to disciplinary action.  If adopted, these rules would impose a higher standard on administrators than teachers.  Here is the key paragraph:

Administrators, who hold Superintendent, Principal or Mid-Management Administrator certificates issued by the SBEC, have as a result of their actual or potential positions of authority over students and other educators an even greater obligation to maintain good moral character than teachers and paraprofessionals. When an administrator’s conduct demonstrates that the administrator lacks good moral character, is a negative role model to students, or does not possess the moral fitness necessary to be a certified educator as described in subparagraph (D) of this paragraph, the administrator may be subject to greater sanction than a teacher or paraprofessional would receive for the same conduct. 19 T.A.C. 249.5(b)(2)(G), proposed.

In plain language, that means that a principal and a teacher who engage in the same misconduct may be disciplined in different ways, with the harsher penalty falling on the principal.

The proposed rules also include a set of “mandatory minimum” penalties for various infractions, ranging from contract abandonment to felony-level conduct.

You should take a look.

http://tea.texas.gov/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=25769824738&libID=25769824836.

The comment period on these proposed rules runs until February 1.  Comments can be sent to sbecrules@tea.texas.gov.

DAWG BONE: MAY ALL OF OUR SCHOOL ADMINISTRATORS BE OF HIGH MORAL CHARACTER.

 

Dawg Bones

It’s Toolbox Tuesday. Can you tell us about a case that illustrates Tool #2?

The Toolbox is an all day workshop focusing on the legalities of serving students with disabilities who present challenging behaviors.  Of the ten tools, Tool #2 is one of the least likely to lead to litigation. That’s because Tool #2 is based on an agreement between the parent and the school.  Tool #2 is used when both the school and the parent agree that a change of scenery for the student would be a good thing. So how can there be litigation?

There can be litigation if the parent does not understand the agreement.  That seems to be what happened in Doe v. Todd County School District, 55 IDELR 185 (8th Cir. 2010).  In this case, the IEP Team changed the student’s placement after a disciplinary incident. The grandmother, acting as the “parent,” agreed to this.  As a result of this agreement, the school cancelled the disciplinary hearing that was pending before the school board.  Why have a disciplinary hearing when the change of placement was agreed to?

But the grandmother soon changed her mind.  At that point, she should have asked for another IEP Team meeting to undo the agreement.  But instead, she sought legal advice, and was told that the school had violated the child’s constitutional rights by cancelling the school board hearing.  Wrong.  There was no constitutional violation and the grandmother did not need to file a federal lawsuit. All she had to do was to ask for another IEP Team meeting.  The court pointed out that the school board had no power here:

Once the IEP team changed Doe’s placement with Dorothy Doe’s consent, the IEP team, not the school board, became the decision-maker authorized to change his placement again.  Given the IDEA’s stay-put mandate, even if the District had held a Goss [disciplinary] hearing at which Doe persuaded the school board that a long-term suspension was not warranted, the board could not have ordered Doe’s reinstatement at [the regular high school].

The district in this case was using what we call Tool #2, but the district failed to obtain the genuine, voluntary, authentic parental agreement that this tool requires.  Thus…litigation. The proper use of Tool #2 is limited to situations where the school has a genuine agreement with the parent. In the Toolbox training, we talk about what it means to have a genuine agreement, and how this should be documented.

If you are interested in Toolbox training, let me hear from you!  Have tools—will travel!

DAWG BONE:  IT’S UP TO THE SCHOOL TO MAKE SURE THAT PARENTS UNDERSTAND ANY AGREEMENTS WE MAKE AT AN ARDC MEETING.

Dawg Bones

How to respond to a sexual harassment complaint.

Responding to a sexual harassment complaint is too big of a topic to deal with in a short Daily Dawg entry, especially on a Friday. But we do know the first two words you should say when it lands on your desk.  No….not the first two words you are thinking.  Try these two instead:

THANK YOU.

You should start by saying THANK YOU.  That’s a good start toward showing that the district disapproves of sexual harassment and seeks to eliminate it.  It indicates that you understand that sexual harassment is a type of cancer that feeds on silence.  So when someone speaks up about it, they are doing the district a service.  So say THANK YOU.

DAWG BONE: YOUR FIRST TWO WORDS: THANK YOU!

Dawg Bones

When does the grievance timeline begin?

Most of the districts in Texas have adopted some form of Policy DGBA (Local) with regard to employee grievances.  Those policies call for employees to file a grievance within 15 days of the date when they know, or should know, that they have something to gripe about.  There has been considerable litigation over exactly when that 15-day timeline begins.  We now have a decision from the Commissioner that makes some key points.

This case is about the reassignment of an administrator to a new position that paid less.  Thus the employee had two possible gripes: first, the reassignment; second, the pay cut.  The decision treats these as separate events with separate timelines.

The Reassignment

The superintendent gave the employee written notice of the reassignment in August, 2013. The district’s policy “encouraged” employees to use informal means of addressing concerns prior to initiating a grievance.  In this case, the employee did that.  She promptly wrote a letter to the HR Director in which she expressed her disappointment in what she viewed as a demotion.  One week later, the HR Director responded, in writing, explaining that the reassignment was not a demotion.

When does the grievance timeline begin?  Is it when the employee got the superintendent’s letter?  Or the HR Director’s letter?  The Commissioner held that the timeline began upon receipt of the HR Director’s letter.  In accordance with an earlier decision, the Commissioner held that the timeline did not begin until the “informal process” was complete.  The HR Director’s letter ended the “informal process.”

As a practical matter, it made little difference.  All this correspondence took place in August, 2013. The employee filed the grievance in July of the next year—way past either deadline.  Nevertheless, the Commissioner’s decision is important because it shows us how the “informal process” affects grievance timelines.   But note: many districts have now adopted a version of DGBA (Local) that specifically says that the “informal process” does not extend grievance timelines. In fact, this district has now adopted that policy, but it was not in effect at the time of this grievance.

The Pay Cut

What about the pay cut?  The letter from the superintendent in August, 2013, warned of a pay cut to take place the following school year. Another letter, in February, 2014, was explicit: she was told that her salary for the next year would be somewhere between $53,957 and $75,283.  Even that higher figure was a pay cut.  Then in July, 2014, the superintendent sent a third letter that advised that he would recommend to the board that the employee’s salary be $64,620 with no more car allowance. Big pay cut.

The employee filed her grievance after receipt of that third letter, but the Commissioner held that she was actually premature. She did not have a final decision to complain of until the board met and adopted the superintendent’s recommendation.  That did not happen until August 21, 2014. Her grievance was timely as long as it was filed within 15 days of that date—which pushes us into September. So the grievance about the pay cut was timely.

The Resignation Deadline

Sharp readers (and that’s about 96.2% of you) are now thinking: “She’s going to win!”  After all, the final decision to cut her pay happened way past the penalty-free resignation date.  Schools can cut an employee’s pay from one year to the next, but only if they give the employee fair notice prior to the date when they can resign without penalty. That date is 45 days prior to the first day of instruction, so it’s usually in the first half of July.  This lady got word of the final decision in August, and filed a timely grievance over it. So she wins….right?

Wrong. The Commissioner said that the grievance timeline was triggered by the final action of the board. But that February letter from the superintendent gave the employee fair notice well before the penalty free date. In accordance with earlier decisions, the Commissioner held that “fair notice” means that the notice must be “formal” and “specific.”

The February letter from the superintendent met both of those standards.  Since it came from the superintendent, and was in writing, it was “formal.”  And since it included a specific number that the salary might be reduced to, it was “specific.” The act that it did not specify her salary, and only provide a range (and a pretty big one) was inconsequential.  The Commissioner: “Thus, the fact that Respondent only gave Petitioner a $21,326 range that her salary could be within does not render the notice too vague” to meet the legal standard.

Management triumphs once again.  The case is Worthy v. Port Arthur ISD, decided by the Commissioner on September 29, 2015. The Docket Number is 016-R10-12-2014.

DAWG BONE: LOTS TO LEARN FROM THIS ONE. 

Dawg Bones

Let’s talk about corporal punishment.

Dear Dawg: Corporal punishment is legal in Texas….right?  JUST WONDERING.

DEAR JUST WONDERING:

Right.  It is legal, but risky.  The most important thing about corporal punishment is compliance with your local policy. Study your policy FO Local. You will find that:

1. Some districts have prohibited corporal punishment;

2. Some districts require parents to give consent before corporal punishment can be used;

3. Some districts impose restrictions, such as a) who can administer it; b) how it is administered; 3) where it is administered; 4) how parents are notified.

The easiest way for an administrator to get into trouble over this issue is to fail to comply with local policy.  Even the failure to comply with a part of the policy that seems unimportant can lead to legal problems.

I recently looked at one district’s FO Local and found that it allowed corporal punishment, unless the parents have provided a written statement prohibiting its use. State law requires that parents be given that opportunity.  The district’s policy had these restrictions:

1. Only “spanking or paddling” are allowed;

2. The student must be told the reason for the paddling;

3. Only the principal or assistant principal can paddle;

4. The principal must approve the instrument to be used;

5. It must be done in a designated area out of the view of other students;

6. There must be a professional district employee serving as a witness; and

7. There must be a disciplinary record to document all of the above.

It’s my impression that most districts that allow corporal punishment require written parent consent.  Remember that state law requires that parents be allowed to opt out of corporal punishment, but many district have taken the extra precaution of limiting this practice to those parents who have affirmatively given their consent for its use. The Dawg thinks that this is the better practice.

Limiting corporal punishment to situations where parents have given written consent is sure to lower your risk of litigation over this controversial practice, but it does not eliminate that risk. Parents can give consent; and then sue over it.

You may wonder: how can they do that?  How can they say it’s OK, and then file a lawsuit over it?  Easily.  The suit will allege that parents gave consent for reasonable corporal punishment, and that what happened in fact was not at all “reasonable.”  No one can precisely define the line of demarcation between “reasonable” and “excessive” corporal punishment. Thus this is a risky practice, and one of the few instances in which a campus administrator can be held personally liable for damages.  You can be held liable for the excessive or the negligent use of physical force while disciplining a student.

So read your FO Local.  Comply with it. Be careful.

DAWG BONE: IT’S 2016 AND CORPORAL PUNISHMENT IS STILL LEGAL IN TEXAS.  LEGAL…BUT RISKY.

Dawg Bones

It’s Toolbox Tuesday! Can you tell us about a court case that illustrates the proper use of Tool #1?

The Toolbox is a one-day training program for campus administrators and special education staff. The Toolbox provides 10 “tools” that school officials can use to serve students with disabilities who present challenging behaviors.  The idea behind the Toolbox is to provide a framework and common vocabulary to help you serve all kids in the LRE while maintaining safety and an environment conducive to learning.

Tool #1 is a BIP—a Behavioral Intervention Plan.  In the Toolbox training we emphasize that Tool #1 is the most important tool.  If it works, you won’t need any of the other nine tools.  That’s because Tool #1 is the only tool designed to improve the student’s behavior.

There are many cases that illustrate the proper and the improper use of a BIP.

*Some courts have pointed out that the law provides no specifics about what a BIP is supposed to look like;

*Some courts have found that the absence of a BIP is no big deal if the school can demonstrate that it addressed the student’s behavior in other ways;

*On the other hand, there are cases that have held that the absence of a BIP is a denial of FAPE to the student.

One of the cases that I think is most illustrative is C.F. v. NYC DOE, 62 IDELR 281 (2nd Cir. 2014).  As if often true, the case provides us a good “teachable moment” because the court ruled against the district.

The court held that the district denied FAPE due to several things, one of which was an inappropriate BIP.  The district did not conduct a FBA.  The court found that this, by itself, was not a violation of law.  However, the BIP that was developed was “vague” and “failed to match strategies with specific behaviors, instead simply listing behaviors and strategies.”

The 7th Circuit would likely disagree with this analysis, since it has held that it is impossible to write a BIP that fails to meet substantive standards, since there are none.  Nevertheless, this is a good case for training on behavioral issues.  A list of behaviors and strategies, without matching them up, is common.  This court holds that a proper BIP would match them up—describing the specific strategy to be used for each behavior.

DAWG BONE: A BIP IS DESIGNED TO IMPROVE THE BEHAVIOR THAT IS IMPEDING LEARNING. SO A GOOD BIP SHOULD CALL FOR INTERVENTIONS THAT ARE DESIGNED TO DO THAT.  MATCH ‘EM UP!