All posts by Jim Walsh

Dawg Bones

LEGISLATIVE ALERT! GET READY TO VIDEO YOUR SCHOOL BOARD MEETINGS!!

Does your school district have an enrollment of 10,000 students or more?  If so, you need to study up on HB 283. This new law requires districts with 10,000 or more students to video and audio record “each regularly scheduled open meeting that is not a work session or a special called meeting.”  The recording must be “of reasonable quality” and posted on the Internet within seven days after the meeting.

The new law says that schools are not required to create a new Internet site for this.  You can use your existing site, or any “publicly accessible video-sharing or social networking site.”  Put it on Facebook, and see how many “likes” you get!  But however you do it, the archived recording, or the link to it must be available in a “conspicuous manner.”  Don’t bury it in the fine print.

You have some time to prepare for this, as the law does not apply until January 1, 2016. But it’s probably wise to get with the tech people in the district to prepare for this.

DAWG BONE: OH BOY.  MORE SCHOOL BOARD MEETINGS TO WATCH ON MY COMPUTER.

 

 

Dawg Bones

IS IT RISKY FOR A TEACHER TO SEARCH THE CONTENTS OF A STUDENT’S CELL PHONE?

The Supreme Court decided long ago that school officials occupy a place that is somewhere in between the parents and the police. They didn’t quite put it that way in the case of New Jersey v. T.L.O., but that was the basic idea. Many of you are familiar with that case. It’s the case where the Supremes held that the  4th Amendment applies in the school setting, but not as strictly as it does to the police.  The case arose when Assistant Principal Choplick (is that a great name for an A.P., or what?) poked around in the purse of young T.L.O., whose real name we may never know. Looking for cigarettes, Choplick found evidence of drug dealing instead.  T.L.O.’s lawyer argued that the search was illegal because there was no warrant.

The Supreme Court held that school officials don’t need a warrant. They have to act reasonably, though.  They have to have a “reasonable suspicion” that the search will uncover some evidence of a violation of school rules.  Choplick’s search was legal.

Thus there is a spectrum with regard to a student’s right to privacy.  At one end are the parents. If they have the courage to poke around their teenager’s bedroom, there is no law that can stop them.  Children have no right of privacy as to their parents. On the other end of the spectrum we have the police.  When they conduct a search, they must fully comply with the 4th Amendment.  This generally involves a warrant, although there are numerous exceptions to that, too complicated to go into on this hot July day.

Then you have the school officials, somewhere on the privacy spectrum between the parents and the cops. They don’t need a warrant; but they can’t just arbitrarily snoop around a student’s personal belongings.

New Jersey v. T.L.O. was decided thirty years ago—long before cell phones.  But its principles are still valid.  Moreover, numerous courts have held that the search of a cell phone is just that—it’s a “search.” That means the 4th Amendment applies.  That means there has to be some reasonable basis for the search.

So the answer to today’s question is “yes.”  It is risky to search the contents of a student’s cell phone.  Students, like all of us, have a lot of private, personal information on their cell phones.  School officials should pause a moment before looking at the pictures, the emails, the texts.  What are you looking for?  Why do you think you will find evidence of a violation of school rules on the cell?   These are good questions to ask yourself before conducting any search of a student’s personal belongings, including the ubiquitous cell phone.

DAWG BONE: LOOKING AROUND ON SOMEONE ELSE’S CELL PHONE IS A “SEARCH.”  BE CAREFUL!

 

Dawg Bones

HAPPY INDEPENDENCE DAY! – THE DAWG IS ON VACAY UNTIL JULY 20th

I see no reason to confine the celebration of America’s Independence Day to just one day, especially when the 4th falls on a Saturday.  So the Dawg is going on a long car trip with Mrs. Dawg and will take a break from the Daily Dawg for awhile. We will resume our daily Dawg Bones on Monday, July 20th.  Until then, drive safe, be safe, and God Bless America!

DAWG BONE: PROUD TO BE AN AMERICAN.

 

Dawg Bones

SCHOOL v. DAWG: DAWGGONE IT!

It’s a real dilemma for the Dawg when a court case pits a school district against one of his canine friends.  The Dawg loves school districts. But how can the Dawg go against his fellow dawg? Especially when that dawg’s name is Wonder.  Thus the Dawg was conflicted while reading about the case of Wonder the service dawg and the school district in Michigan.

The parents of a little girl in Michigan wanted to have Wonder at school with her, to serve as her service animal.  The little girl had significant disabilities, and Wonder was trained to assist her. But the school district was already providing a human being as an aide for the little girl, and thus deemed Wonder unnecessary.  The school turned down the request.

The parents filed suit, even though they had moved their little girl to another district which welcomed Wonder. They sued the original district, alleging that its refusal to allow Wonder to help out was illegal.  They sought money damages, among other things, for the violation of their daughter’s rights.   Since the suit was based on Section 504 and the Americans with Disabilities Act (ADA) the lawyers evidently thought that they did not have to go through the special education due process hearing system. They went right to court, without requesting a special education due process hearing.

That turned out to be a mistake.  The school district filed a Motion to Dismiss the lawsuit, arguing that the parents were required to “exhaust administrative remedies.”  That’s legalese for “you have to get a special ed due process hearing first. You can’t go to court until you do that.”

The 6th Circuit agreed with the school district, and tossed the case out of court.

This case sheds no light on the issue of when a school is obligated to permit a service animal to accompany a student to school.  The decision is purely procedural, and thus will be of more interest to the lawyers than the educators.

Nevetheless, the Dawg finds this very satisfying. The court did not have anything bad to say about the school or Wonder.  It did not say that the school violated the law. Nor did it say that Wonder was anything other than wonder-ful.  It just said that the parents failed to jump through one of the procedural hoops you have to jump through.

Got a service animal question?  Call your lawyer.  The case is Fry v. Napoleon Community Schools, decided by the 6th Circuit Court of Appeals on June 12, 2015.

DAWG BONE: EVEN WHEN YOU SUE UNDER 504, YOU MIGHT NEED TO ASK FOR A SPECIAL ED HEARING FIRST.

 

 

Dawg Bones

SOMEBODY TOLD ME THAT I COULD COMMIT “ASSAULT” EVEN THOUGH THE OTHER PERSON SUFFERS NO INJURY. TRUE?

True.  Texas identifies three types of assault in one statute—Section 22.01 of the Penal Code.  Two of the three involve no injury.  However, when “assault” comes up in the context of public education, it usually refers only to the type of assault that results in an injury.  Let’s review.

It’s an assault if I “intentionally, knowingly, or recklessly” cause “bodily injury” to another person. This is Penal Code 22.01(a)(1). That’s the type of assault that Chapter 37 of the Education Code identifies as a mandatory DAEP offense.  This is also the type of assault that a teacher might cite as the basis for assault leave.

The Penal Code defines two other types of assault, neither of which requires proof of an injury.  In fact, one of them requires no physical contact at all.  It’s an assault if I “intentionally or knowingly” threaten you with “imminent bodily injury.” Thus this section of the law (Penal Code 22.01(a)(2)) makes the threat itself an “assault,” even in the absence of any physical contact.

The third type of assault (Penal Code 22.01(a)(3)) is generally known as “offensive touching.”  If I “intentionally or knowingly” cause physical contact with you in a way that I ought to know you will regard as “offensive or provocative” I have committed an assault.  Here, there is contact, but no injury.

Educators should be careful about tossing the term “assault” around too loosely.  Yes, all three of these are defined as “assaults” under the Penal Code. But when teachers or administrators are talking about assaults, it is usually in the context of student discipline, or a request by a teacher for assault leave.  With regard to student discipline, your Code of Conduct might make all three of these offenses punishable. But if you charge a student with the type of assault that requires DAEP as per Chapter 37, there must be some degree of “bodily injury.”  The law specifies DAEP for a student who “engages in conduct containing the elements of the offense of assault under Section 22.01(a)(1), Penal Code.”

Likewise, with assault leave. Teachers are entitled to assault leave to “recuperate from all physical injuries sustained as a result of the assault.”  T.E.C. 22.003(b).  So if there is no injury, there is no assault leave.

DAWG BONE: BE CAREFUL WITH THE TERM “ASSAULT”

 

 

Dawg Bones

SOMETIMES YOU CAN TELL HOW THE COURT WILL RULE FROM THE OPENING LINE OF THE OPINION.

When I was in law school, our torts professor told us of an opinion that opened by describing the plaintiff as “The widow Jones.”  You know right away, she’s going to win.  Otherwise, she would be “Mrs. Jones.”

Same thing in a recent Supreme Court case.  The opening line of Justice Alito’s opinion introduces us to Darius Clark:

Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town.

You just know that Mr. Clark is going down.

The Court held that a three-year old’s statements to his preschool teachers about the abuse he endured from Mr. Clark was admissible in the criminal prosecution of the man.   The case is about the 6th Amendment and its Confrontation Clause. That’s the provision that guarantees that a person prosecuted for a crime “shall enjoy the right….to be confronted with the witnesses against him.”

In this case, the little boy did not testify, but the court admitted into evidence the statements that he made to his preschool teachers.  With that damning evidence in the record, the jury sentenced Mr. Clark to 28 years in prison.  Mr. Clark took the matter all the way to the Supreme Court, arguing that the judge never should have allowed the little boy’s testimony to be admitted into evidence.  The Supreme Court ruled that the evidence was admissible.

Mr. Clark’s argument was based on the state law that required teachers to report suspected child abuse. The argument was that this law effectively transformed preschool teachers into agents of the police.  Thus when the teachers asked the little boy about what had happened, and how he got the bruises and black eye, they were supposedly acting as agents of the police, gathering information for the district attorney.  This would make the little guy’s statements “testimonial” and thus barred from admission at the trial.

You will probably be pleased to hear that the Supreme Court easily rejected that argument, describing it as “off-base” and “inapt.”  Key Quote:

The teachers’ pressing concern was to protect L.P. [the three-year old] and remove him from harms’ way.   Like all good teachers, they undoubtedly would have acted with the same purpose whether or not they had a state-law duty to report abuse. 

Teachers are not acting on behalf of the police when they question a student to determine if abuse has occurred. They are not criminal investigators hot on the trail of a suspect.  They are educators, carrying out their legal, moral and ethical duty to guard against child abuse.

It’s good to see the Supreme Court recognize that.  The case is Ohio v. Clark, decided by the Supreme Court on June 18, 2015.

DAWG BONE: THOSE MANDATORY REPORTING LAWS DO NOT TRANSFORM TEACHERS INTO COPS.

 

 

Dawg Bones

NO STARS AND BARS ON OUR LICENSE PLATES. WHAT DOES THIS MEAN FOR PUBLIC SCHOOLS?

It is ironic that the Supreme Court’s decision about the display of the Confederate Battle Flag on Texas license plates came out when it did. The decision was issued on June 18th.   The night before that, a young man who revered the Confederacy, attempted to “start a race war,” by murdering nine African-Americans who had gathered in their church to study the Bible.   A nationwide flap ensued about the “stars and bars” flag and other symbols of the Confederacy, including the statue of Jefferson Davis which is prominent on the University of Texas campus.

The Supreme Court’s decision does not deal with the symbolism of the flag at all.  The Court did not address the emotionally charged issues the flag provokes.  The issue was whether the display of this emblem on a state-issued license plate was an expression of the views of the owner of the car, or of the government.  It’s a tricky question. The state issues the license plate and provides for much of the content of it. But Texas, like many other states, allows people to purchase a “specialty plate” that displays a message of their own choosing.

The Sons of Confederate Veterans (SCV) designed a specialty plate that promoted their organization and featured the Confederate Battle Flag.  They sought approval of the specialty plate, and were denied.  The Texas Department of Motor Vehicles noted that “a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”

The SCV sued, and took the matter to the U.S. Supreme Court. The argument was pretty simple:  this is my license plate, on my car, and I ought to be able to say what I want.  You don’t have to be a constitutional scholar to know that free speech is protected by the First Amendment. And free speech frequently involves saying things that others may find demeaning, offensive, or even hateful.  There was also a “viewpoint discrimination” argument. After all, Texas approved plate designs involving other flags and symbols, some of which are offensive to some groups. For example, a plate design honoring “Buffalo soldiers” was offensive to some Native Americans.  Despite that, the DMV approved their specialty plate.

There is no question that the SCV would have prevailed in this case if the Court had determined that the message on the license plate was the personal expression of the person who purchased the specialty plate.  After all, people can put a Confederate flag bumper sticker on their car and can fly the flag on their private property.  So why not on a license plate that I buy with my money to put on my car?

By a 5-4 margin, the Supremes determined that the license plate was the expression of the government, not the individual.  The Court held that the government is not limited by the Free Speech Clause of the First Amendment. It can freely choose what it wants to say, what it wants to promote and what it wants to discourage.  As the majority opinion notes, “Were the Free Speech Clause interpreted otherwise, government would not work.”  Cities could not promote recycling.  Schools could not promote vaccination.

This does not mean that governments are as free in their expression as private individuals are.  The Court notes that “Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech.”  For example, governments cannot promote religion because of the Establishment Clause.  Texas schools cannot use public funds to advocate for passage of a bond issue because of state law restrictions.   Nevertheless, this decision strongly supports the notion that a governmental unit, such as a school district, can promote certain causes without violating the First Amendment.  It would seem logical that school districts could promote such things as regular attendance, reading books to children, volunteering in the school and other good causes relating to the primary mission of the school.

As usual with Supreme Court cases, the dissenting opinion is more interesting.  Justice Alito had a bit of fun pointing out that one Texas specialty plate actually promotes the Oklahoma Sooners!  He wonders if a person seeing the OU logo on a Texas plate might think “that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents?”

The case is important and worth your lawyer’s attention.  It’s called Walker v. Texas Division, Sons of Confederate Veterans, decided by the U.S. Supreme Court on June 18, 2015.  It was the four liberals (Breyer, Ginsburg, Kagan, Sotomayor) teaming up with Justice Thomas to form the majority.

DAWG BONE: PUTTING THAT OU LOGO ON A TEXAS LICENSE PLATE MAY BE LEGAL.   BUT IT’S WRONG.

 

 

 

Dawg Bones

SO WHY IS IT THAT TEXAS KIDS RECITE THE PLEDGE TO THE STATE FLAG EVERY DAY?

A lady asked me about this one time.  She said she had taught in public schools in many states around the country. In every place she taught, children started the day by reciting the Pledge of Allegiance to the American flag.  But only in Texas did kids then turn to the state flag and offer similar allegiance. She asked me: “What’s that about?”

So I told her.

That’s about Colonel Travis drawing a line in the dirt at the Alamo. That’s about the sun coming up over the Gulf Coast, spreading out over the magnificent hills of Central Texas and setting in the Palo Duro Canyon.  It’s about barbecue or TexMex and then a high school football game on a Friday night. It’s about a DQ Blizzard on a hot Saturday afternoon.  It’s about Lyle Lovett, Van Cliburn, Janis Joplin, Johnny Mathis, and Willie Nelson.  It’s about Earl Campbell, The Tyler Rose, blasting across the goal line.  It’s about a poor kid from El Paso named Lee Trevino.  It’s about Nolan Ryan’s fastball.  It’s about the Kilgore Rangerettes.  I told her: you’re in a State with an Attitude, lady.  Get used to it.

DAWG BONE: HONOR THE TEXAS FLAG.  LONG MAY SHE WAVE.

 

 

Dawg Bones

HEADSCARVES AND RELIGIOUS DISCRIMINATION

Dear Dawg:  We don’t allow employees to wear caps, or headgear of any kind while in the building.  Now we have an applicant for a teaching job who is Muslim, and wears a headscarf…all the time.  What to do?  SEEMS LIKE I READ SOMETHING ABOUT THIS RECENTLY.

Dear Seems Like I Read:  Yes, you probably did read something about the Supreme Court’s decision in a case that parallels your situation.  The case involved an applicant with Abercrombie and Fitch.  Have you ever been to one of those stores?  You will instantly feel shabby and out of shape as soon as you walk in. That’s no accident. Company policy includes the “Look Policy.”  Thus the people who work at A&F must look sharp and dress sharp. This includes no caps, hats, berets, scarves over the head or any other such head covering.

So this lady applies for the job wearing her headscarf. The interview went well, and the assistant manager was inclined to offer her a job. But she was worried about the headscarf, and whether or not it would comply with The Look Policy.  She did not ask the applicant why she was wearing the headscarf. She just assumed that it was probably due to a religious belief.

So she asked the manager about it.  No response. She took it up the ladder to the district manager.  The assistant told the district manager that she thought the woman was wearing the headscarf due to her religion.  The district manager told the assistant that wearing the headscarf would violate the Look Policy, and therefore, she should not offer the woman a job.

The woman sued, alleging that A&F discriminated against her on the basis of religion.  A&F’s main argument boiled down to: “but she didn’t tell us!”  The argument was that the plaintiff had to prove intentional discrimination, and how can it be intentional when the employee has not raised the issue.  In other words, A&F argued that the woman should have said something like this: “By the way, I’m a Muslim.  Will you please waive your Look Policy for me?”

The Supreme Court ruled in favor of the woman. The seven-member majority held that the key was not what the employer knew, but rather the motive of the employer. Here’s the key quote:

An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.  Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that an accommodation would be needed.

In this case A&F did not know that the woman would request an accommodation. But it had an “unsubstantiated suspicion” that this was the case. Critically, it was the refusal to even consider accommodating the employee’s religion that was the motive.  In the Court’s words, the district manager was seeking to “avoid accommodation.”

A&F also argued that the “Look Policy” was completely neutral. It did not single out religious headgear.  No head covering of any kind would be permitted.  But the Court made short work of that:

But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual…because of such individual’s” “religious observance and practice.”

Keep in mind that no one ever asked the applicant if she is wearing the scarf because of her religious beliefs.   It’s understandable that the assistant would not want to inquire about the woman’s religion.  That would be an improper question.

But the assistant could have explained the Look Policy, and inquired about whether or not the applicant would be able to comply with it.  If the applicant balked, due to her religious beliefs, then the two of them could have engaged in a conversation about possible accommodations.

The case is EEOC v. Abercrombie & Fitch, decided by the Supreme Court on June 1, 2015.  Justice Scalia wrote the majority opinion, which garnered the support of conservatives and liberals on the Court alike.  But Justice Alito only “concurred” in the judgment, and Justice Thomas mostly dissented.  So score this one 7-2.

DAWG BONE: FEDERAL LAW REQUIRES ACCOMMODATION OF RELIGIOUS BELIEFS AND PRACTICES…EVEN AT ABERCROMBIE & FITCH.

 

 

 

Dawg Bones

LEGISLATIVE ALERT! THE BREAST MILK BILL!!

HB 786 is designed to protect the rights of women who need to express breast milk while at work.  But it doesn’t cover all female workers—only those who work for a “public employer,” like a school district. Hourly workers in private industry already enjoy this protection due to a provision in the Affordable Care Act, which requires that private employers provide break time and adequate space for milk expression.  Now, public employees in Texas will enjoy that same protection.  The only ones left out are salaried employees in private business.

Schools will need to adopt policies to comply with this new law, so we are sure that TASB staff will provide a new policy for your board to consider. The policy must “support the practice of expressing breast milk” and “make reasonable accommodations” for the needs of the mothers who need to do this.

Specifically, your school will need to “provide a reasonable amount of break time for an employee to express breast milk each time the employee has need to express the milk.”  Also, the school will have to “provide a place, other than a multiple user bathroom, that is shielded from view and free from intrusion.”

This is a new right, but also a limited one.  The statute says that a school cannot discriminate against a person who asserts her rights under this statute; but it also says that the statute does not create a “private or state cause of action.” So, presumably, this new statute would authorize a nursing mother to file a local grievance, but not a lawsuit.

However, we expect an aggrieved party would cite federal sex discrimination laws in a lawsuit, rather than this statute.  After all, expressing milk is like pregnancy in that it is unique to one gender.  Furthermore, a suit could probably be brought if it seeks only declaratory relief or an injunction (along with attorneys’ fees, of course!).

But you won’t have to worry about any of that, as long as you comply with the law.  So make sure those nursing mothers are made welcome in your school building.  After all, I have heard from more than one mother that the whole sequence of pregnancy, childbirth and nursing is hard enough as it is.  Let’s not make it any harder.

DAWG BONE:  LOOKS LIKE THIS IS ONE PART OF OBAMACARE THAT OUR LEGISLATURE LIKES.