All posts by Jim Walsh

Dawg Bones

DEPARTMENT OF JUSTICE TAKES SIDES IN THE BATHROOM WARS

Remember “potty parity”?  My recollection is that this phrase entered the general lexicon after a George Strait concert at the Astrodome.  The audience was overwhelmingly female, and the Dome simply lacked the capacity to handle that kind of crowd.  Eighth Wonder of the World, indeed!

Thus the cry for “potty parity” which did not mean that there would be an equal number of bathrooms. It meant there needed to be more capacity for the women, since they took longer—and we won’t get into the reasons for that.

Bathroom wars continue, but they are more complicated in the Bruce/Caitlyn Jenner era.  Moreover, they reach right down into your school district.

So we think it’s important for you to know that the U.S. Department of Justice has filed a “statement of interest” in a case involving a transgender male student who wants to use the regular boys’ bathroom.  The suit was originally filed by the ACLU against the Gloucester County School Board in Virginia.  According to news reports, the district’s policy includes extra privacy measures in all restrooms, and permission for any student to use any single-stall restrooms the district has. However, the policy also limits students to either the single-stall bathroom or the bathroom that corresponds to the student’s biological gender. In other words, if I’m born a girl, but have a male gender identity, I can use the girls’ room or the single-stall bathroom—but I cannot go to the boys’ room.

That’s what plaintiff Gavin Grimm is complaining about, and now the federal government has taken his side.

DAWG BONE: IT’S HARD TO MAINTAIN NEUTRALITY IN THE BATHROOM WARS.

Dawg Bones

THE FIRST AMENDMENT AND THE RIGHT TO LEAVE WORK EARLY?

This guy’s been leaving work early on Fridays for years. Now all of a sudden it’s not OK. What’s that about?

Let’s say you have a teacher’s aide who is a Muslim.  When you hire him, he asks if it would be OK for him to be dismissed early on Fridays, as he usually leads the prayer service at the mosque on Friday afternoons.  You don’t anticipate any problems with this, so you agree to it.  A few years go by with this arrangement in place, and no complaints, no problems.  Then you find an interesting video on YouTube. The video shows your employee giving a lecture at the mosque.  In the lecture, he identifies himself as an employee at your campus, and then criticizes the school for exposing Muslim students (of which there are many) to the polytheistic belief system of Greek mythology.  Hmmm.

A few months later you revoke permission for your teacher’s aide to leave work early on Friday afternoons.   The teacher’s aide disregards this, and continues to leave early. So you fire him.

Do you think this would create a legal problem for you?

It would.  It did in Columbus, Ohio.

The employee, Abdurahman Haji filed suit, claiming that he suffered retaliation as a result of his exercise of First Amendment rights.  The 6th Circuit Court of Appeals ruled in favor of the school district on this one, but it was a closer call than you might expect.  The reason for the ruling in favor of the school district was because there was an intervening factor—something that happened after the principal saw the video, and before he revoked the prior permission. What happened was that the teacher who supervised Mr. Haji complained (for the first time) that his absence on Fridays had become disruptive.

The fact that the principal revoked the prior permission just a few months after seeing the video was problematic for the principal. The courts refer to this as “temporal proximity,” and view it as a factor that a reasonable jury could rely on to determine that the employee is being punished for engaging in “protected activity.” After all, there was no question that the lecture the man gave, and the subsequent publication of it on YouTube, was constitutionally protected free speech.  There was no question that revocation of a privilege he had enjoyed for several years was “adverse action.” So to win his case, Mr. Haji only had to prove that there was a cause and effect connection between the two. The “temporal proximity” of the two events helped his cause.  If he could prove that the revocation of his privilege was an act of retaliation, then the order that he stay at school on Fridays would be invalid. Thus the case turned on the issue of the revocation of his prior permission to leave early. Was this because of the YouTube video?

The court noted that it would rule for the school if the school could “present evidence of sufficient non-retaliatory reason to rescind the agreement” to allow the man to leave early.  The school did exactly that:

Ellingwood, Haji’s direct supervisor, complained in Spring 2008 to Principal Lewis about Haji’s absences for the first time.  She told Lewis that Haji’s early Friday absences caused substantial disruptions to her classroom.   Haji does not dispute that Ellingwood complained about him.  It is a sufficient, non-retaliatory reason to rescind permission for an employee to engage in otherwise permissible conduct in response to a direct supervisor’s complaint that the conduct directly interfered with the employee’s job duties.  Ellingwood’s complaint therefore demonstrates that Lewis’s rescission of the agreement was not retaliation for Haji’s YouTube video.

We suppose there are a few lessons to be drawn from this case.  First, rescission of a privilege can be viewed as “adverse action” even if you did not have to grant the privilege in the first place.  Second, the timing of events is important.  If the “adverse action” took place five years after the “protected activity” it would lack that “temporal proximity.” Third, documentation, as usual, plays a crucial role in litigation.  We wonder if the teacher’s complaint was really the first time the teacher ever complained about Mr. Haji’s absence on Fridays.  Maybe she groused about it in the teacher’s lounge. Maybe she badmouthed her aide during the Friday afternoon teacher Happy Hours.  We don’t know. All we know is that the court was convinced that when she complained to the principal about it, this was the first time she had done so.  That’s when Mr. Haji’s absences on Fridays went from “OK” to “not OK.”  That was the crucial piece of evidence that supported the “non-retaliatory” reason for Mr. Haji’s termination.

The case is Haji v. Columbus City Schools, decided by the 6th Circuit Court of Appeals on July 16, 2015.

DAWG BONE: RESCINDING PERMISSION FOR SOMETHING MIGHT BE MORE LEGALLY PROBLEMATIC THAN YOU THINK.

 

Dawg Bones

LEGISLATIVE ALERT! HB 2610 AND THE MINUTES IN A SCHOOL DAY

Dear Dawg,

I've got a plan to complete the school year by Christmas! I’ve been reading up on the new legislation and came across HB 2610.  What an innovative idea! And a return to local control!! This is the one that says we have to have school for 75,600 minutes—not 180 days. So now we don’t count the days—we count the minutes. It also says we can add minutes to the normal day!

So I did the math on this.  If we go to school from 8:00 a.m. to 10:00 p.m., that would be 840 minutes per day. With that schedule, we can finish the school year in 90 days! We can knock that out by Christmas!!  I pitched this to the board last night, and they were enthusiastic.  --WADDYATHINK?

DEAR WADDYATHINK: We think you get a good grade for math, but not so good for English Language Arts.  It doesn’t appear that you read the bill very carefully.  First of all, it says that you cannot finish the school year before May 15.  There is an exception to that rule, but only if you are a district that borders another state, and does not offer every grade K-12.

Furthermore, you cannot just add minutes as a routine matter. The bill says that you can add minutes if 1) you lost minutes due to “disaster, flood, extreme weather conditions, fuel curtailment, or another calamity”; and 2) the Commissioner turned down your request to reduce your total minutes.

Nice try!

DAWG BONE: 420 MINUTES PER DAY. 180 DAYS.  IT ALL ADDS UP TO 75,600 MINUTES OF SCHOOL!

Dawg Bones

LEGISLATIVE ALERT! HB 1842 AND DISTRICTS IN DISTRESS!

This bill 1) allows for the appointment of a “student trustee” in districts that have a campus operating under a “campus turnaround plan;” 2) spells out the procedure for the Commissioner to deny the renewal of an open enrollment charter, or to revoke the charter, or reconstitute the governing body; 3) allows districts to obtain “District of Innovation” status; 4) authorizes the Commissioner to order “monitoring reviews” as well as random on-site visits; 5) requires the agency to adopt written procedures for conducting “special accreditation investigations” which may allow the agency “to obtain information from district employees in a manner that prevents a district or campus from screening the information;”  6) changes “reconstitution” and “repurposing” to “campus turnaround plan”;

A “District of Innovation” must go through a lengthy process to obtain that status, including the development of a Local Innovation Plan. Once obtained, the district may be exempted from certain legal requirements, including the provision that the school board must approve terminations and nonrenewal of Chapter 21 contracts, and the statute pertaining to student uniforms.

DAWG BONE: BE THE FIRST IN YOUR COUNTY TO BE A “DISTRICT OF INNOVATION”!

 

Dawg Bones

LEGISLATIVE ALERT! TIME LIMITS ON STAAR TESTS!

HB 743 says that assessment instruments must be “determined to be valid and reliable” based on empirical evidence.  This determination must be made by an entity “that is independent of the agency and of any other entity that developed the assessment instrument.”

85% of kids in grades 3-5 should be able to complete the dadgum thing in two hours.

85% of kids in grades 6-8 should be able to finish in three hours.

Time allotted for administration may not exceed eight hours, and must be on just one day.

Also: the bill requires T.E.A. to study the TEKS as compared to the STAAR and issue a report telling us whether or not it all makes sense.  We know that many of you are looking forward to that!  T.E.A. must get this report to SBOE by March 1, 2016. SBOE must send the report, along with SBOE recommendations, to the governor and members of the legislature by May 1, 2016.  Thus it will be ready for further action in the 2017 legislative session.

Also: the bill requires T.E.A. to develop a “comprehensive methodology for auditing and monitoring performance under contracts for services to develop or administer” assessment instruments.   As you may recall, there has been just a bit of criticism of Pearson Education about our testing system.

DAWG BONE: GOOD TO KNOW THAT THE STAAR CANNOT LAST AS LONG AS THE BAR EXAM.

Dawg Bones

LEGISLATIVE ALERT! HB 18, DUAL CREDIT COURSES & MORE!

HB 18 says that the rules adopted by T.E.A. and/or the Higher Education Coordinating Board may not limit the number of dual credit courses, or semester hours a student can take in a semester, a year, or during high school.  Note: HB 505 says the same thing.

Also: T.E.A. must develop and distribute materials to promote “curriculum change awareness.” This is mostly about the changes implemented by HB 5 in 2013. The materials must be made available in English, Spanish and Vietnamese.  This must be done by December 1, 2015.

I am not sure, but I think that this is the first time that the legislature has mandated publication of a document in three languages.  We have many laws that require publications in English and Spanish, and they usually require a “good faith effort” to provide translations for other languages. But this bill mandates Vietnamese along with our two prevailing languages.  Interesting.

Also: schools must provide instruction to 7th and 8th graders to prepare them for high school, college, and a career.  This must include information about a personal graduation plan, distinguished levels of achievement, endorsements, college readiness standards, career choices and the education needed to enter those careers.  This instruction can be provided through 1) an existing course; 2) an existing CATE course as designated appropriate by SBOE; or 3) through a new course. But it must be provided at least once to every student in either 7th or 8th grade.

Also: The Center for Teaching and Learning at UT Austin is to make “postsecondary and career counseling academies” available for school counselors and other “postsecondary advisors” employed by a school district.

All of this is in effect with this school year.

DAWG BONE: I GUESS THEY LIKE THOSE DUAL CREDIT COURSES.

Dawg Bones

HOW DOES THE SUPREME COURT’S DECISION ABOUT SAME-SEX MARRIAGE AFFECT TEXAS SCHOOL DISTRICTS?

How does the Supreme Court’s decision about same-sex marriage affect Texas school districts?

There is no doubt that the decision in Obergefell v. Hodges was the most historic and consequential decision from the Supreme Court’s 2014-15 term. This is the case in which the Court held that the Constitution guarantees the right of people to marry a person of the same sex.

Consequential and historic as it is, the decision will have only a limited impact on Texas school districts.  Texas school districts do not issue marriage licenses or perform marriage ceremonies.  However, Texas districts and charter schools will need to review their employee benefit packages and make note of any benefits that are afforded to spouses.  That term now includes a person of the same sex if the two people are lawfully married.

DAWG BONE: DYLAN HAD IT RIGHT. THE TIMES THEY ARE A-CHANGING. 

 

 

Dawg Bones

“SMALL BOARDS” AND ROBERT’S RULES OF ORDER

Dear Dawg: I heard that Robert’s Rules of Order has a special section for “small boards.”  One of our board members insists that this is what applies to our school board. But everyone on our board is taller than six feet, and our average is 6’2”.  Do we qualify as a “small board”? BIGGER THAN MOST.

DEAR BIGGER THAN MOST:  The Dawg claims no particular expertise on Robert’s Rules. We generally try to avoid getting embroiled in parliamentary disputes.  When a school board member starts quoting Robert’s Rules, this is usually the first sign of trouble.

I’ve heard the same thing you heard—that there are simpler procedures for small boards. We are pretty sure, though, that “small” refers to the number of members, rather than the average height.   So we think you should seek guidance from your parliamentarian on proper protocol, but in the meantime, how about adopting a mission statement in keeping with your stature: STANDING TALL FOR PUBLIC EDUCATION!

DAWG BONE: A BOARD THAT IS TALL IS NOT NECESSARILY LARGE.

 

 

Dawg Bones

LEGISLATIVE ALERT! HB 1783—MY RIGHT NOT TO REMAIN SILENT.

HB 1783 creates a new right for school employees—the right to report a crime that was witnessed at the school.  The bill adds Section 37.148 to the Texas Education Code. That section will read as follows:

RIGHT TO REPORT CRIME.  (a) An employee of a school district or open-enrollment charter school may report a crime witnessed at the school to any peace officer with authority to investigate the crime.

(b) A school district or open enrollment charter school may not adopt a policy requiring a school employee to: (1) refrain from reporting a crime witnessed at the school; or (2) report a crime witnessed at the school only to certain persons or peace officers.

This goes into effect on September 1, 2015.  Notice that 1) it applies to all school employees, not just certified educators; 2) it applies to charters; and 3) it applies to things that happen at school that are “witnessed,” presumably by the person who makes the report.

DAWG BONE: LET’S HOPE THIS IS A “RIGHT” THAT MOST TEACHERS WILL NOT HAVE TO EXERCISE.

 

 

 

Dawg Bones

WE ARE THINKING OF ADOPTING A PARENTS’ CODE OF CONDUCT. IS THAT A GOOD IDEA?

There is some logic to developing a written statement setting out expected conduct for parents in dealing with teachers, administrators and other school staff.  We already have written expectations for everybody else in the school community.  Kids are subject to the Student Code of Conduct.  All school employees must comply with the district’s policies.  Educators have a Code of Ethics, and board members usually adopt one for themselves. But many districts have nothing laying out what is expected of parents.

Chapter 26 of the Texas Education Code is entitled “Parental Rights and Responsibilities.”  But we have studied it carefully and have yet to find the “responsibilities” part.

So there is a vacuum here that could be filled with some locally developed statement of general expectations.  However, we would urge you not to call this a “code of conduct.”  That term generally comes from a higher level of authority imposing a set of rules that it will enforce, usually through negative consequences.  You can’t put mom in the DAEP.  You can’t make dad go to Saturday school.  Nor can you punish a student on account of inappropriate behavior by the parent.  So if you did something like this, you would have to understand that it is just an aspirational document—a set of goals.

Moreover, to have legitimacy, a statement of parental expectations ought to come directly from the parents.  Why not form a committee of parents and charge them with coming up with a set of general principles and expectations that the district can endorse?

We came across one set of parental expectations that was developed by a private school. It starts with the basics: “I will have my child in school on time every day with the necessary school supplies and appropriate dress.”

But then it got personal:  “I will show respect for the teacher and any other adult in authority in front of my child at all times, regardless of what I may think of their actions or say to them in private.”

“I will set a good example for my child through my own speech and behavior.”

“I will stop rumors.  I will go through the proper channels when I have a problem.”

“I will never lie to… the principal, or teachers to protect my child from the consequences of his/her behavior.”

Just imagine what might happen if everyone adhered to those promises.

DAWG BONE: PARENTS ARE THE CHILD’S FIRST TEACHERS.  WHAT DO YOU EXPECT OF THEM?