All posts by Jim Walsh

Dawg Bones

DOES A PRINCIPAL HAVE THE RIGHT TO PUBLICLY CRITICIZE SCHOOL POLICIES?

A recent decision from the 10th Circuit confirms the notion that free speech rights shrink as one moves up the administrative ladder.  In Rock v. Levinski the court affirmed the termination of a principal who was fired because of the way she publicly criticized a decision made by the school administration.

Joyce Rock was principal of Career Prep High School, an alternative school in Shiprock, New Mexico.  In May, 2013, the superintendent decided to close the school due to budget concerns.  At a public meeting to discuss this, Ms. Rock opposed the plan.  Among other things, she expressed concerns that some of the students at Career Prep would not be successful in a more traditional, and larger school.

The superintendent did not appreciate this.  He charged her with being unprofessional. The superintendent held the belief that campus administrators should show support for administrative decisions, and should certainly not question the ability of kids to be successful in the school to which they will be assigned.

Ms. Rock was not the only speaker who opposed the planned school closure during the public meeting.  Others spoke out as well.  The school board took the concerns to heart.  The very next day, the board announced that it had found additional funds, and would keep the school open.

This must have been a relief to Ms. Rock, but what happened next was not.  Four days later her immediate supervisor put her on a growth plan, citing her failure to publicly support the superintendent as one reason.

It got worse.  Two weeks later the superintendent put Ms. Rock on administrative leave for the remainder of her contract, and decided that she would not be given another contract.

A couple of weeks after that the New Mexico Association of Secondary School Principals named Ms. Rock as its Principal of the Year.  This, no doubt, was a nice honor, but she was now out of a job and not happy about it. Ms. Rock filed suit against the superintendent and the district, claiming that they had retaliated against her for the exercise of First Amendment rights of free speech.

The court ruled in favor of the school district and the superintendent.  Critical to the court’s reasoning was the fact that Ms. Rock was a high ranking school official:

Rock was not an ordinary employee of the District. She was not a teacher, but a principal, a high-ranking member of the management team.

The court cited a U.S. Supreme Court decision for the proposition that “The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails.”  Rankin v. McPherson, 483 U.S. 378 at 390 (1987).  In other words, the higher up you go, the more cautious you should be.

In support of its decision, the court cited two other Circuit Court decisions that specifically dealt with principals, and came to the same conclusion: Sharp v. Lindsey, 285 F.3d 479 (6th Cir. 2002) and Vargas-Harrison v. Racine Unified School District, 272 F.3d 964 (7th Cir. 2001).  Summing it up the court said:

A superintendent should be able to expect loyalty and support, at least in public, from a high-ranking employee like a principal who is responsible for implementing his policies.

The case is Rock v. Levinski, decided by the 10th Circuit on June 29, 2015.  It is cited at 791 F.3d 1215.

DAWG BONE: THE HIGHER YOU GO, THE MORE CAUTIOUS YOU SHOULD BE BEFORE YOU SPEAK IN PUBLIC.

 

Dawg Bones

IT’S TOOLBOX TUESDAY! LET’S TAKE A LOOK AT TOOL #4.

The Toolbox consists of ten tools that school administrators can use to deal with disruptive and/or violent students who are eligible for special education.  Tool #4 is probably the tool that is used the least.  That’s a good thing.  Tool #4 is used when a student’s presence in the current placement is dangerous to the point that the school has decided to seek an order from a special education hearing officer or court to order the immediate removal of the student.

Here’s how this might happen. The school calls for an ARDC meeting to consider a change of placement because of the student’s disruptive and/or violent behavior.  The ARDC concludes that the behavior is a manifestation of the student’s disability—thus Tool #6 (Disciplinary Change of Placement) is not available.  The school members of the ARDC think a change of placement is called for, but the parents do not agree—thus Tool #2—an agreed-to change of placement—is not available.  And although the student is dangerous, he/she has not inflicted “serious bodily injury” or possessed drugs or a weapon at school—thus Tool #5 is not available.

Pursuant to the traditional “stay put” rule, the student is supposed to remain in the current placement. The principal and superintendent are genuinely worried that this will lead to an injury to someone in that classroom. We know that school administrators cannot “unilaterally” remove the student from the current placement—but they can seek an order from a special education hearing officer or a local district judge.  However, the burden of proof is demanding. The school must prove that if the student stays where he/she is, someone is “substantially likely” to get hurt.

Let’s hope that does not happen in your school this year. If it does, be sure to get your school’s attorney involved from the start. This tool is definitely one where the lawyer needs to be involved.

DAWG BONE: SCHOOLS CAN SEEK HELP FOR THE IMMEDIATE REMOVAL OF A STUDENT IF NECESSARY.

Dawg Bones

DEAR DAWG: A LOCAL PREACHER CLAIMS THAT THE TEXAS CONSTITUTION REQUIRES ALL SCHOOL BOARD MEMBERS TO ACKNOWLEDGE THE EXISTENCE OF A SUPREME BEING. TRUE?

Dear Dawg: A local preacher claims that the Texas Constitution requires all school board members to acknowledge the existence of a Supreme Being.  True?

Dawg: I got a letter from one of our local preachers last week that got my attention. This fella has been here for decades, is well respected and is informally known as The Sinkiller of West Texas.  Now, you don’t want to ignore a man like that. The Sinkiller is a good man, but he loves to rail about our “evil” public schools, where God is no longer welcome.  His latest claim is that every member of our school board is required to acknowledge, at a minimum, that there is at least some kind of Supreme Being out there.  What’s this about?  I DON’T SUPPOSE THE SUPERINTENDENT WOULD QUALIFY AS THE “SUPREME BEING”?

DEAR I DON’T SUPPOSE: We know where the Sinkiller got that.  He’s not making it up.  Let’s take a look at Article I, Section 4 of the Texas Constitution:

No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.  (Emphasis added).

That’s what it says.  Still.

We used to have a provision in the Education Code that said much the same thing, and applied it to all school employees.  Section 4.07 stated that schools could not inquire into the religious beliefs of anyone who sought employment with the school except to ask if the person acknowledged the existence of a Supreme Being.  A federal district court in Houston struck this statute down in 1982 in the unreported case of Roe v. Klein ISD.  We found a reference to this case in the first edition of The Educator’s Guide to Texas School Law, by Dr. Frank Kemerer (UT Press, 1986).  We’re not sure when it disappeared from the Education Code, but it did.

Statements in the Texas Constitution can remain there until repealed by the voters, but if they conflict with federal constitutional requirements, they hold no power.  We have a very recent example of this.  Article I, Section 32 of the Texas Constitution says that “Marriage in this state shall consist only of the union of one man and one woman.”

It still says that.  But county clerks are issuing marriage licenses to same-sex couples.

And no, the superintendent will not qualify as a “Supreme Being.”

DAWG BONE: BE CAREFUL WHEN READING THE TEXAS CONSTITUTION.

Dawg Bones

THE DAWG IS CORRECTED BY A COLLEAGUE….

We have a tradition in our law firm (two years—that makes a tradition, right?) of exchanging adorably cute pictures of our adorably cute children and even more adorably cute grandchildren as they head off to school on that first day.  It’s all smiles and backpacks and new shoes.  But my colleague, Doug Brock, a lawyer’s lawyer, pointed out that we should no longer refer to the first day of school as “the first day of school.” As per HB 2610, now it is The First 420 Minutes of School.

Duly noted, Doug. Thanks.

And just think of the progress you have already made. If you started on August 24th, and took Labor Day off, by the end of the day, you will have completed 5,880 minutes!  Only 69,720 to go!!

DAWG BONE: AS THE DOOBIES BROTHERS ONCE SAID, “MINUTE BY MINUTE….”

Dawg Bones

DEAR DAWG: I’M CONFUSED ABOUT WHAT WE ARE SUPPOSED TO TRANSLATE AT AN ARD MEETING. WHAT ARE THE RULES?

You are confused because it is confusing. We’ve had a lot of wrangling about this of late, including a new rule that went into effect at the start of 2015. Now we have a proposed addition to that rule that may make it more clear.

Here’s where we are right now.  The current rule says:

If the student's parent is unable to speak English and the parent's native language is Spanish, the school district must provide a written copy or audio recording of the student's IEP translated into Spanish. If the student's parent is unable to speak English and the parent's native language is a language other than Spanish, the school district must make a good faith effort to provide a written copy or audio recording of the student's IEP translated into the parent's native language.

This is pretty much the same language we have in the Education Code at 29.005(d).  Notice that both the statute and the rule call on districts to translate the IEP—not the ARD meeting. This has caused much confusion, as some folks fail to distinguish between the two. But they are different. The proposed rule clarifies this. It reads as follows:

(1) For purposes of this subsection, a written copy of the student's IEP translated into Spanish or the parent's native language means that all of the text in the student's IEP in English is accurately translated into the target language in written form. The IEP translated into the target language must be a comparable rendition of the IEP in English and not a partial translation or summary of the IEP in English.

(2) For purposes of this subsection, an audio recording of the student's IEP translated into Spanish or the parent's native language means that all of the content in the student's IEP in English is orally translated into the target language and recorded with an audio device. A school district is not prohibited from providing the parent with an audio recording of an ARD committee meeting at which the parent was assisted by an interpreter as long as the audio recording provided to the parent contains an oral translation into the target language of all of the content in the student's IEP in English.

(3) If a parent's native language is not a written language, the school district must take steps to ensure that the student's IEP is translated orally or by other means to the parent in his or her native language or other mode of communication.

We added emphasis to that with the bold font to make sure the message gets across.  It’s not the back-and-forth at the ARD meeting that must be translated.  It’s the IEP. All of it.

DAWG BONE: TRANSLATING THE IEP IS A MUY BUENO IDEA.

Dawg Bones

11TH CIRCUIT REJECTS STUDENT-ON-STUDENT LIABILITY STANDARDS PROPOSED BY THE FEDS

Last week we told you about the 11th Circuit’s decision in the infamous “rape bait” case, Hill v. Cundiff.  The court held that the school district, and some of its employees, could be held liable for the injuries suffered by the 8th grader who was used as “bait” to catch a boy “in the act” of sexually harassing her.  In its ruling, however, the court actually rejected the standard of liability that the plaintiff and her supporters were advocating. This is particularly interesting because those supporters include the Department of Education and the Department of Justice.

The argument was over what the plaintiff had to prove in order to win.  Did she have to show that the school had “actual notice” of harassment that had already occurred?  Or would it be sufficient to show that the school officials knew that there was a “substantial risk” that sexual harassment would occur.   There is a big difference there.  It’s basically about whether the school is liable based on what it knew, or what it “should have known.”

The court said that the “substantial risk” standard proposed by the federal Department of Education and Department of Justice “lacks merit.”  The court noted that the DOE’s proposed standard was based on cases involving teachers who sexually harassed students—not student-on-student cases.  As the court noted, there is a big difference:

The standard for student-on-student sexual harassment claims is far more rigorous than a claim for teacher-on-student harassment.

The [Supreme] Court imposed this high standard to guard against the imposition of “sweeping liability.”  Unlike an adult workplace, children “may regularly interact in a manner that would be unacceptable among adults.”

Some risk of sexual harassment is inherent in the enterprise of public education, in particular because public schools must educate even the most troublesome and defiant students.

The high burden of Davis [the Supreme Court’s student-on-student case] ensures that school districts are not financially crippled merely because immature kids occasionally engage in immature sexual behavior.

Based on that analysis, the court chastised the lawyers from the Departments of Justice and Education for citing the wrong cases:

All of the cases cited by [the plaintiff] and the Department of Justice applying a “substantial risk” standard or similar language involved teacher-on-student harassment.

Thus the higher standard was rejected, which is good news for school districts in the future. It didn’t help the Huntsville, Alabama district, however, as the court went on to rule that it failed the easier test.

The case is Hill v. Cundiff, decided by the 11th Circuit on August 12, 2015.

DAWG BONE: THE STANDARD FOR STUDENT-ON-STUDENT CASES IS MORE RIGOROUS THAN IN A  TEACHER-ON-STUDENT CASE.

Dawg Bones

THIS MUST BE TOOLBOX TUESDAY! TELL US ABOUT TOOL #3

The Toolbox is a set of 10 “tools” available to school administrators in dealing with students with disabilities who engage in inappropriate and/or disruptive behavior.  Last week we looked at Tool #2—a change of placement with parental agreement. Tool #3 is the companion to that one—this is another educational change of placement, but this time, it is done without parental agreement.

Tool #3 is used when the student’s behavior is a manifestation of his or her disability. Consider, for example, a student with autism who is served in the general, mainstream classroom.  The teacher reports that the student’s behavior is impeding the learning of the student and of others in the class. The behaviors are directly caused by the student’s disability, but that does not make them any less disruptive.  What to do?

The first thing to do is to come up with ways to better support the teacher and the students in that class.  Are there supplementary aids and services that could be employed effectively?  Is the behavior plan working? If not, what can we do to improve it?  Should we consult with a new behavior specialist?  Are there evaluative steps we should take?  What do the parents suggest?

We should try all of that before thinking about a change of placement. After all, we are expected to serve the student in the least restrictive environment.

But sometimes schools try all of those things, and see little progress. There comes a time when you may find it appropriate to recommend a change of placement.  Tool #3 is an “educational” change of placement. That’s to distinguish it from Tool #6, which is a disciplinary change of placement. You would use Tool #6 to change placement based on behavior that is not a manifestation of disability. But if the behavior is a manifestation, a disciplinary removal would be inappropriate. You can, however, recommend a change to a more restrictive environment for educational reasons.

Tool #3 anticipates parental disagreement, and so the school officials should talk to the lawyers first.  Have we done all that we can do to serve the student appropriately in the LRE?  Are we unified in our view that a change is appropriate? Do we have a good alternative placement to propose?  All of those issues need to be addressed.

This Tool is the ARD Committee’s Tool, as changes in placement can only be proposed and effected at an ARD meeting. But the ARD that uses Tool #3 needs strong administrative leadership and sound legal advice.

If you are interested in a Toolbox training, contact me at jwalsh@wabsa.com or Haley Armitage at harmitage@wabsa.com.  The Toolbox training is a full day, aimed at campus administrators and special education staff, with a clear explanation of all 10 tools and some hypotheticals to practice on. We’d love to hear from you!

DAWG BONE: TOOL #3: AN EDUCATIONAL CHANGE OF PLACEMENT WITHOUT PARENTAL AGREEMENT.

Dawg Bones

THE DAWG’S ANNUAL BACK TO SCHOOL TOUR ABOUT TO LAUNCH!

We’re pleased to let you know that next week we launch the Dawg’s 10th Annual Back to School Tour! We have much to cover this year. New legislation.  Court cases.  Special ed and 504 developments.  We will provide a full day of informative training, along with some fun along the way.  Sign up at:   https://legaldigestevents.com/legal-digest-events/back-to-school-workshops-with-jim-walsh/

Here’s the schedule:

September 10:  Region 7--Kilgore

September 11: Region 8—Pittsburg

September 15: Region 2—Corpus Christi

September 16: Region 20—San Antonio

September 18: Region 1—Edinburg

September 22: Region 18—Midland/Odessa

September 24: Harris County Department of Education—Houston

September 29: Region 17—Lubbock

October 1: Region 13—Austin

October 6: Region 9—Wichita Falls

October 7: Region 10—Richardson

October 9: Region 11—Fort Worth

Be there or be square!

DAWG BONE: HOPE TO SEE YOU SOMEWHERE AROUND THE GREAT STATE OF TEXAS

Dawg Bones

WE JUST GOT A BILL FOR TUITION FROM A RITZY PRIVATE SCHOOL IN NEW ENGLAND WHERE ONE OF OUR FORMER STUDENTS IS NOW ATTENDING. WHAT’S THIS ABOUT?

Parents of students with disabilities can place their children in private schools and seek reimbursement from the public school. But it is not easy for them to prevail in litigation.  They have to prove that the public school failed to provide a free appropriate public education, and that the private school will do the job properly.  But they also have to give the public school fair warning of their intent to pursue this course of action.

That notice requirement was the reason that a parent in New Jersey lost his bid for tuition reimbursement.  The court held that he failed to give timely notice.  The sequence of events was critical:

July 10: parent filed application for son to attend The Forman School, a private college prep boarding school;

August 7: child is accepted;

August 13: parent signs enrollment agreement;

August 16: parent pays full first year tuition ($61,700);  (Yowza!!)

August 24: parent sends letter to district, stating his intent to place child in private school, and to seek reimbursement;

September 6: student begins attending orientation at Forman;

September 7: IEP Team meets, develops revisions to the proposed IEP the school would offer.

During the September 7th meeting, the parent revealed that the student was attending Forman’s orientation program.  Upon learning this, the school terminated the meeting.

The parent is required to give written notice of the intent to remove a student and seek removal at least 10 business days before the removal.  The court held here that the student’s removal was a “fait accompli” as of August 13th.  Thus the notice that the parent sent on August 24th was late.  The case is W.D. v. Watchung Hills Regional High School Board of Education, 65 IDELR 63; 602 F.App’x 564 (3rd Cir. 2015).

DAWG BONE: I.D.E.A. SPELLS OUT A LOT OF PARENT RIGHTS, BUT ALSO A FEW RESPONSIBILITIES.

Dawg Bones

WHATEVER HAPPENED IN THAT “STING” OPERATION INVOLVING THE 14-YEAR OLD GIRL USED AS “RAPE-BAIT”?

On January 12th we told you about the lawsuit brewing in Alabama where a teacher’s aide came up with the cockamamie idea of using a 14-year old girl as “bait” to catch a boy “in the act” of sexually harassing her.  The plan worked—sort of. The boy took the bait and met the girl in the boys’ bathroom.  But the aide did not intervene in time, nor did anyone else. The boy raped the girl—medical evidence confirmed it.  We told you in January that the lawsuit was pending before the 11th Circuit.  Well, now we have the decision.

The court held that the school district faces potential liability for student-on-student harassment.  Furthermore, the principal, an assistant principal and the teacher’s aide all face possible personal liability.  The Circuit Court refused to dismiss claims against these parties, thus allowing the case to proceed to trial…or more likely, a very expensive settlement.

This case is incredibly sad.  For those of us who advocate for and believe in public education the case is an embarrassment.  This tragic sequence of events started with the principal’s erroneous beliefs about when he was empowered to take corrective action. The court put it this way:

Principal Blair informed other staff members, including Teacher’s Aide Simpson, that students had to be “caught in the act” of sexual harassment to impose discipline.  Assistant Principal Dunaway testified that “students in middle school, especially with the use of social media, tend to make up a lot of stories about people and if we disciplined every child for every rumor, we would have no children at our school.”

Based on these erroneous views, bad record keeping, knowledge of the boy’s rap sheet, failure to supervise him, not stopping the aide from executing this outlandish plan, and the complete failure to offer assistance, counseling or other support to the victim, the court concluded that a jury could find the district guilty of “deliberate indifference” to acts of student-on-student sexual harassment that were severe and objectively offensive.  Here’s something I hope is never said about a Texas school district:

As outlined above, the Board’s knowledge of [the boy’s] sexual harassment, its catch in the act policy, its orchestration of a sting operation using Doe as bait for [the boy’s] sexual activities, and its failure to help Doe in any way was patently odious.

For the lawyers, this case is particularly important because it provides an excellent analysis of the legal standard that applies in student-to-student cases.  The Dawg will chew on that bone next week. For today, let’s just note that there is much work to do by way of training of teachers and administrators in this area.  This case is a wake up call. We have people in positions of authority who do not understand their responsibilities. We have much work to do.

The case is Hill v. Cundiff, decided by the 11th Circuit Court of Appeals on August 12, 2015.

DAWG BONE: LET’S HOPE YOUR SCHOOL’S CONDUCT IS NEVER DESCRIBED AS “PATENTLY ODIOUS.”