All posts by Jim Walsh

Dawg Bones

5th Circuit Rules for Texas District in Racial Harassment Suit

The 5th Circuit Court of Appeals affirmed a judgment in favor of Marion ISD and two of its employees in a case based on allegations of ugly racial harassment. The court held that the district could not be held liable for what students did to other students unless there was some evidence of deliberate indifference on the part of the school officials.  “The evidence here,” the court noted, “even when viewed in the light most favorable to the Plaintiffs, fails to raise a genuine dispute” about the district’s responsiveness.

The allegations of racial harassment in this case are ugly.  But the court pointed out that the racial harassment did not come from school officials—it came from other students.  And when it learned of what was happening, the school district responded, including taking “relatively strong action to address the most egregious incidents.”

The most shocking incident involved a threatening, vulgar and racially offensive note left next to the car of one of the plaintiffs in the school parking lot.  Just to make sure the message got across, the person who did this also left a noose for the plaintiff to find.

The school never found out who did this, but it wasn’t for lack of trying.  After the plaintiff informed the assistant principal about this incident, the A.P. reviewed surveillance tape of the parking lot. It did not cover the area of the parking lot where this occurred. The A.P. also turned the matter over the police. The police interviewed several school employees and each of the students that the plaintiff suspected may have been involved.  The FBI got involved also, and the court noted that “Marion ISD cooperated with the police and FBI investigations of the incident.”

The district also took steps to accommodate the student who was the victim:

After the parking lot noose incident, Marion ISD provided Plaintiffs with various accommodations, including allowing [the student] to park in the teacher’s parking lot and complete school work in the counselor’s office, and providing [another plaintiff/student] with an aide to walk her to the high school.

It’s important to keep in mind that this was a “student-to-student” harassment case. Thus the plaintiff sought to impose liability on the school district not based on what the school district did directly.  Rather, the argument is that the district should be held responsible for what students did to other students.  In a case like that, the plaintiff has to prove 1) that the harassment was severe, pervasive and objectively offensive to the point that it deprived the victim of access to educational opportunities or benefits; 2) that the district knew about it; 3) that the district had control over the harasser and the environment where it occurred; 4) that the harassment was based on race; and 5) that the district was deliberately indifferent to the harassment.

The court concluded that no reasonable jury could conclude that the district was “deliberately indifferent.” Case dismissed.

Of course the best way to show that you are not “deliberately indifferent” to harassment based on race, sex, religion or disability is to show that you are proactively seeking to prevent any such misconduct.  Proof of how the district responds to harassment that it learns of is important, but equally important and helpful is proof of the training the district provides to create a culture where such harassment will not take place.  Marion ISD “required its employees to attend additional training on the district’s discrimination, harassment and bullying policies, and it required students to attend a special assembly on the same topics.”

Good for Marion.  The case is Fennell v. Marion ISD, decided by the 5th Circuit Court of Appeals on October 13, 2015. We found it at 2015 WL 5944434.

DAWG BONE: THE BEST WAY TO SHOW YOU ARE NOT “DELIBERATELY INDIFFERENT” IS TO SHOW THAT YOU REALLY CARE

Dawg Bones

It’s Toolbox Tuesday! Tell us about Tool #10!

The Toolbox is a set of 10 “tools” designed to help you meet the needs of students with disabilities who are seriously disruptive, while maintaining a safe and orderly campus at the same time. We have been reviewing the tools over the past 10 Tuesdays, and today we come to the final tool—calling in law enforcement.

It may surprise you to hear that there was, at first, some controversy about this. In the early days of special education law, there were cases in which parents argued that school officials could not refer students to the police after commission of a crime. The argument was that schools brought in law enforcement in an effort to circumvent legal procedures-- trying to change the child’s placement without going through the ARD Committee.

In response, Congress amended the law to explicitly authorize referrals to law enforcement. We now have this language in regulations at 34 CFR 300.535:

Nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.

The key to Tool #10 is to be evenhanded.  Campus administrators should call in law enforcement in a non-discriminatory manner.  Would you be calling the cops about this incident if it involved a non-disabled student?

There has been much criticism of public schools of late for a perceived over reliance on law enforcement.  Authority to issue tickets and citations for minor offenses has been curtailed.  But no one questions the authority of a principal to contact the police when we have evidence of a serious crime.  That’s that Tool #`10 is about.

In the all-day Toolbox Training, we go over Tool #10 along with all of the others, and provide hypothetical cases for participants to practice with.  If you are interested in a Toolbox training, please let me know, or contact Haley Armitage at the law firm (harmitage@wabsa.com).

I can’t imagine what we will talk about next Tuesday!

DAWG BONE:  TOOL #10—BE EVENHANDED ABOUT IT.

Dawg Bones

Do you know how to handle ticklish situations involving family disputes?

I once heard a longtime Family Court judge tell a roomful of teachers that it was the teacher’s testimony that she valued the most in a custody dispute.  “Oftentimes,” the judge told them, “the teacher is the only objective witness—the only one whose sole interest is the child.”

That may be true, but still, it is stressful when school officials get brought into a family dispute over custody, or access, or attendance at meetings, or who can have lunch with the child.

That’s why our firm is offering an audio conference on this subject:

ALL IN THE FAMILY: DEALING WITH FAMILY LAW ISSUES THAT IMPACT SCHOOL DISTRICTS

Attorneys Elizabeth Neally and Leandra Ortiz will present this audio conference on November 10 at 10:00 a.m.  This is an excellent opportunity for your staff to receive up to date training on this complex area of law.  Go to the firm’s website to sign up: www.walshgallegos.com.

DAWG BONE: IF YOU’RE A CAMPUS ADMINISTRATOR YOU NEED TO KNOW THE BASICS OF FAMILY LAW.

Dawg Bones

DEAR DAWG: CAN A LIZARD ON A LEASH BE A “SERVICE ANIMAL”?

Dear Dawg: I like reptiles just as much as the next fellow, I suppose, but I'm just not so sure about a lizard in the classroom.  I mean a loose lizard--not one in the cage for the kids to study.  We have a dad who insists that his daughter should be able to bring Lucy the Lizard to class.  Lucy, we are told, will be on a leash and will sit on the little girl's shoulder all day.  Doesn't eat much, Lucy, and we are told she is housebroken. No lizard poop to clean up. The dad insists that Lucy will be no trouble, and she will have a "salutary effect" (his words, not mine) on his daughter's "somewhat tempestuous disposition" (his words, not mine).

Two questions, Dawg.  Do we have to do this? What does "salutary" mean? Sounds like "saliva" to me. DON'T WANT ANY LIZARD SPIT AROUND HERE.

DEAR DON'T WANT ANY:

Housebroken or not, on a leash or loose, spitting or not...makes no difference.  A lizard is not a service animal. First of all, a service animal has to be a dog (or dawg) or a miniature horse. Secondly, a service animal has to "do work" to help the person with a disability.  Lucy may be of comfort, but that is not "work." Just ask this dad what kind of "work" this prehistoric, small brained creature can do. Sheesh.

DAWG BONE: A LIZARD IS NOT A SERVICE ANIMAL.

Dawg Bones

Whatever happened to that teacher whose disability was a fear of children?

It’s understandable that the case of The Teacher Who Was Afraid of Children got a lot of attention and generated considerable ridicule. In fact, however, Ms. Maria Waltherr-Willard was not afraid of all children—just those under the age of 12.  Thus she was a successful teacher at the high school in Mariemont City, Ohio.

In 1997, after Ms. Willard had taught at the high school for 20 years, she was asked to move to the elementary.  Ms. Willard promptly produced a letter from a psychologist, who had diagnosed the teacher with “pedophobia.” The district backed off on the reassignment, and Ms. Willard taught for another 12 years at the high school.

For the 2010-11 school year, the superintendent reassigned Ms. Willard to middle school. According to the court, “Willard did not object to the new assignment, and later expressed ‘enthusiasm’ for teaching middle schoolers.”

But it didn’t last.  Six months into the year, Ms. Willard declared herself “underutilized” at the middle school and asked for a transfer to the high school. Noting that there were no vacancies at the high school, the superintendent turned her down, while offering the customary promise to “keep your request on file.”

Shortly thereafter, Ms. Willard resigned.  Then she sued.

The 6th Circuit affirmed a decision in favor of the school district.  However, there is very little discussion about the anomaly of a public school teacher with “pedophobia.” The court simply noted that there was no opening for her at the high school, and thus accommodating her disability would have been “unreasonable.” The court noted that the Americans with Disabilities Act “requires an employer to accommodate a disabled employee, but it does not require unreasonable accommodations.”

Notice: the district did not blow off the unusual diagnosis. It took it seriously and accommodated Ms. Willard when it could by backing off on the proposed transfer to the elementary.  The district re-assigned her to the middle school with no objection, and turned down her request to go back to the high school because it had a good reason to do so.

The case is Waltherr-Willard v. Mariemont City Schools, decided by the 6th Circuit on February 11, 2015.  We found it at 601 Fed. App’x. 385 and at 2015 WL 542944.

DAWG BONE: “PEDOPHOBIA”—DON’T BLOW IT OFF.

Dawg Bones

THEY CUT MY PAY BY ALMOST $10,000. HOW CAN THIS BE LEGAL?

Assistant Principal Jamil Abdul-Jabbar was paid $76,166 in the 2013-14 school year.  The district renewed his contract for the next year, but cut his pay by almost $10,000, dropping him to $66,349.  Ouch.  Can the district do that?

It can.  The key is that the district has to give the employee notice of the drop in pay prior to the penalty-free resignation date.  The notice has to come from the proper source, and be sufficiently formal and specific so as to put the employee on notice.

Here, the district gave the man notice of the looming pay cut in February, 2014—well in advance of the 45-day penalty free resignation date. However, the letter from the superintendent did not tell Mr. Abdul-Jabbar exactly what his salary would be. It cited a potential range from $53,957 to $75,283.  Notice that the high end of that range would still be a pay cut, albeit a fairly modest one ($883).

In July, the district provided the man with a specific figure--$66,349.  This was after the penalty free resignation date, but the Commissioner ruled that the February letter from the superintendent satisfied the legal requirement. The man’s appeal was denied.

This ruling again confirms the broad authority that superintendents have to move administrative pieces around on the chess board. With timely and sufficient notice, this can even involve a cut in pay.  The case is Abdul-Jabbar v. Port Arthur ISD, Dkt. No. 017-R10-12-2014, decided by the Commissioner on July 16, 2015.

DAWG BONE:  CUTS IN PAY CAN HAPPEN FROM ONE YEAR TO THE NEXT, WITH PROPER AND TIMELY NOTICE.

Dawg Bones

It’s Toolbox Tuesday. Tell us about Tool #9.

The Toolbox is a set of practical steps that campus administrators can take in dealing with violent or disruptive students with disabilities.  The law imposes two requirements on schools in serving such students.  We must serve the student appropriately, while maintaining a safe and orderly environment for all the students. This week we focus on Tool #9--leadership at the non-consensus ARD meeting.

This tool is necessary because there will inevitably be times when the school and the parents are not able to come to an agreement as to how, or where, the student will be served.  These disagreements will come up at ARD meetings. The person serving as administrative representative--usually a principal or assistant--needs to have the skills to bring the meeting to closure, even though it will not come to consensus.

Let's consider a common example. The student has committed a serious violation of the Code of Conduct. The teachers and other school personnel are all of the opinion that the student's disability did not cause the student's misconduct.  However, the parent disagrees.  The issue has been discussed long enough that it is clear that neither side is going to budge.

The first thing to keep in mind is that is it OK that ARD Committees will sometimes end the meeting in non-consensus.  In fact, it is expected.  This why we have rules that address the non-consensus meeting.  So don't be afraid of a disagreement.

However, the administrator should ask herself "the three questions" before steering the group toward a non-consensus closure. Those questions are:

1. Is this worth fighting over?

2. Is the school's position legally defensible?

3. Is the school staff united?

If the answer to all three questions is "yes" then it would be appropriate for the administrator who is leading the meeting to bring the meeting to closure.

In our Toolbox workshops we discuss this topic in more detail, and review practical scenarios in which Tool #9 would be useful.  We study the two "stay put" rules and figure out which one applies to a given situation, and what the implications of that are.

If you are interested in bringing the Toolbox to your district or Service Center, please contact me, or Haley Armitage (harmitage@wabsa.com) at our law firm.

DAWG BONE: BRING THE ARD TO CLOSURE WITHOUT CONSENSUS ONLY AFTER ANSWERING THE THREE QUESTIONS.

Dawg Bones

Dear Dawg: Does a student have a constitutional right to burn the Texas flag?

Dear Dawg: We have a 7th grader who aspires to be a member of the U.S. Supreme Court. the kid reads court opinions during lunch, and speaks in unintelligible legalese half the time.  And he takes great pleasure in being provocative.

So yesterday he pulled a Texas flag out of his backpack and set it on fire on the playground during lunchtime.  Needless to say, this caused a commotion and the assistant principal sent the kid to ISS for the rest of the day. Now Mr. Smartypants is saying that the Texas Court of Criminal Appeals has held that he has a constitutional right to burn the Texas flag. He asked us, "haven't you read Judge Keller's opinion in State of Texas v. Johnson?". What's he talking about?. I HATE LAWYERS ANYWAY.

DEAR I HATE LAWYERS ANYWAY,

The kid is current, but he's wrong.  The Texas Court of Criminal Appeals released its decision in State of Texas v. Johnson on October 7, 2015.  They declared unconstitutional the Texas statute that made it a crime to intentionally damage a U.S. or Texas flag. The court held that the statute was "overbroad" and therefore unconstitutional. So the prosecution of Mr. Johnson could not proceed.  Likewise, Mr. Smartypants, your future lawyer cannot be prosecuted under that statute.

That doesn't mean that there is a constitutional right to burn or otherwise damage the flag anywhere, anytime.  We expect you would consider it a violation of the Code of Conduct to set fire to anything while on the school playground. Fire is dangerous, especially when kids are around. You are not prosecuting him for damaging a flag under the Texas Penal Code.  You are enforcing your code of conduct's rules about setting fire to things.

The U.S. Supreme Court long ago determined that burning an American flag can be a form of expression, and thus it shot down the Texas statute regarding flag desecration. But again, that doesn't mean that a person can burn a flag anywhere, anytime.

Here's a weird tidbit for you. Both of these cases are styled Texas v. Johnson. The U.S. Supreme Court decided Texas v. Johnson in 1989. The Texas Court of Criminal Appeals decided Texas v. Johnson October 7, 2015.  Looks like the State of Texas ought to just leave Mr. Johnson alone.

This kid isn't named Johnson, is he?

DAWG BONE: TEXAS HIGH COURT STRIKES DOWN "DAMAGING A FLAG" STATUTE.  BUT YOU STILL CAN'T BURN A FLAG ON THE PLAYGROUND DURING SCHOOL.

Dawg Bones

Dear Dawg: Lubbock ISD won’t allow Jesus to show up on the jumbotron. I wouldn’t want to be them when He shows up on Judgment Day! What were they thinking????? SINKILLER OF WEST TEXAS

Dear Sinkiller:  Calm down, my friend.   They love Jesus in Lubbock.  They just don’t like tattoos. What happened was a group called “Little Pencil, L.L.C.” (don’t ask) wanted to display an ad on the jumbotron at the football field. The ad featured Jesus, alright, but he was very extensively tattooed. We’re not sure that tattoo art was available in the early A.D. years, but regardless of its historical accuracy, Lubbock turned down the ad. But they did it because of the tattoos—not because of Jesus. So if they get questioned about this when the sheep and goats are being separated, I’m confident that the spokesperson for the district will be able to say: “It’s not that we don’t like Jesus.  We just don’t like tattoos.”

The district turned down the ad because tattoo parlors in Texas may not serve minors, and the district had a “no visible tattoos” policy. The court held that the district’s rationale was “reasonable.”  It was “content based” but “viewpoint neutral.”

It helped the district’s cause that it accepted other religious advertising.  This indicated to the court that the district was not hostile to religion, just the tattoos.  The court held that the jumbotron was not a place for wide open and free discussion.  Instead, it was a “limited public forum,” which meant that the district could impose reasonable restrictions on the ads it would accept.

The case is Little Pencil, L.L.C. v. Lubbock ISD, decided by the 5th Circuit on September 23, 2015.  You can find the case at 2015 WL 5601316.

DAWG BONE: MAKE NO MISTAKE: LUBBOCK LOVES JESUS, BUT THEY ARE NOT TOO COOL WITH TATTOOS.

Dawg Bones

Dear Dawg: I’ve applied for SEVEN different jobs and they haven’t even given me an interview! After 38 years in the business, I know age discrimination when I see it. What do you think???? TIRED IN TUPELO.

The Tupelo Public School District decided to “outsource” services to the Fillmore Center, an alternative school in May, 2010. The entire staff was let go, and told to apply for available positions elsewhere in the district.  Just one year later, the district dumped the outsourced company, and opened up all the jobs at Fillmore. The former director of the program was re-hired, but his assistant, Mary Alice Stennett, was not. Ms. Stennett, then 66 years old, with beaucoup administrative certifications and 38 years of experience (20 in Tupelo) inquired about a job at Fillmore, and formally applied for seven other positions that were available within the district.

She got two interviews, and no offers.  Each of the seven jobs went to someone much younger.  Ms. Stennett also noticed that none of the four oldest employees from Fillmore found fulltime work anywhere in the district.  She sued, alleging age discrimination.

The federal district court tossed the case out, granting summary judgment in favor of the district. The 5th Circuit reversed, and its ruling is a must read for HR directors.

The court held that Ms. Stennett had established a “prima facie” case, and supplemented that with sufficient evidence to cast serious doubt on the district’s claim that age had nothing to do with it.  The “prima facie” part of this is not too hard to establish.  Ms. Stennett had to show that 1) she was rejected for a job that she applied for; 2) she was qualified for the job; 3) she was over 40; and 4) they hired someone “substantially younger.”  Ms. Stennett made her “prima facie” case seven times, based on the seven open jobs she did not get.

On top of that, the court cited four factors that cast doubt on the district’s position. First, Ms. Stennett produced “comparatively exemplary qualifications” for the seven jobs. The court cited her three advanced degrees, four administrative and teaching certifications, 38 years of experience and 20 within Tupelo. The court concluded that “measured in terms of education and experience, Stennett was more qualified than each of the successful younger applicants, except one.”

Second, the court noted with emphasis the district’s refusal to even interview Ms. Stennett for five of the seven jobs.  Given her experience and credentials, this did not appear to make sense.

Third, the court observed that the district explained its decisions based on criteria that was not listed in the job postings. For example, one principal noted that she favored another applicant over Ms. Stennett because of the applicant’s background in STEM. The job posting said nothing about that.

Fourth, the court noted that Ms. Stennett was just one of four old fogeys at Fillmore who did not land another fulltime job.

Ms. Stennett has not won her lawsuit. But her victory at the 5th Circuit, reversing the lower court’s decision in favor of the district, certainly moves her in the right direction, jacks up the cost of an out of court settlement.

For people involved in the hiring process, this is a great case study. The case is Stennett v. Tupelo Public School District, decided by the 5th Circuit on July 30, 2015.  You can find it at 2015 WL 4569205.

DAWG BONE: IF SHE’S GOT A LOT OF EXPERIENCE AND CREDENTIALS, MAYBE IT WOULD BE GOOD IDEA TO GIVE THE OLD GAL AN INTERVIEW.