All posts by Jim Walsh

Dawg Bones

WHAT DOES IT TAKE TO HAVE AN AGE DISCRIMINATION CASE?

Dear Dawg: I’m 64 and got fired by the school district last year.  Now they have gone and replaced me with a young fella.  He’s 63. Do I have an Age Discrimination case?  NOT THAT OLD. 

DEAR NOT THAT OLD:  We’d have to know a lot more about your situation before we’d express any opinion about that. But let’s just start out by saying it would probably be a stretch to convince a court that the school was motivated by age when they replaced an elderly 64-year old with a spring chicken of 63.

This issue came up in a case recently decided by the Houston Court of Appeals.  A charter school teacher was let go, and she alleged that it was based on age. She was 64.  The majority of the Court held that she failed to allege a “prima facie” case because she admitted that she was replaced by a 50-year old.   The Court said that a prima facie case requires allegations to show four critical facts: 1) that you are older than 40; 2) that you are qualified for the job; 3) that your employment was terminated; and 4) that you were replaced by someone younger than 40, or that similarly situated people were treated differently.

The teacher had no problem with the first three factors, but she lost her case based on the 4th factor.  Since her replacement was 50, rather than 39 or younger, the case was doomed to failure.

A dissenting judge asserted that the majority got it wrong.  He cited a Texas Supreme Court case that said the 4th factor was not about being under 40—it was about being younger than the plaintiff. See Mission CISD v. Garcia, 372 S.W.3d 629 (Tex. 2012).  Thus the dissenting judge said that the teacher alleged a prima facie case, and should have been allowed to proceed with her case.

Even if the plaintiff had gotten past that “prima facie” hurdle she would have borne the burden of proving that age was the motivating factor in the termination decision. So to get back to your question, we think that burden of proof would be particularly difficult if the age differential was just one year.

The case is Rosenberg v. KIPP, Inc.  decided by the Court of Appeals for Houston, the 14th District, on January 29, 2015.  We found it at 2015 WL 410454.

DAWG BONE:  AGE DISCRIMINATION CLAIMS REQUIRE PROOF THAT AGE WAS THE MOTIVATING FACTOR.

 

 

Dawg Bones

NEW LAWS! LET’S TAKE A LOOK AT HB4—THE ONE ABOUT PRE-K

After much wrangling and politicking, the Lege did indeed pass a new law regarding Pre-K programs.  The headline on HB 4 is what it did not do.  It did not open the door to more kids to attend Pre-K.  Nor did it fund a full day Pre-K.  Eligibility for Pre-K is still limited to kids who meet certain criteria.  They must be three or four years old and 1) unable to speak English; 2) educationally disadvantaged; 3) homeless; 4) the child of an active duty military parent; 5) the child of a parent injured or killed in military service; or 6) a child who has been in conservatorship.  There were several bills introduced that would have kept these limitations in place for three-year olds, but opened Pre-K to all four year olds. None of those bills passed.

The new law provides Foundation School Program funding for a half-day program.  On top of that, there will be grant funding available for programs that meet certain standards. The grant funding is only available for four-year olds, and cannot exceed $1500/student. The specifics of the grant funding will be established by the Commissioner. The total funding available for this cannot exceed $130 million over the next two years. That would be $65 million per year; if funded to the max, this would help out 43,333 four-year olds.

There was some talk that districts would be required to impose an assessment of sorts on the kids in Pre-K, but that did not happen. The only reference to testing in the bill leaves it optional with the district.  It says that “If the district elects to administer an assessment” then it must include a description and the results of the assessment in its PEIMS data.

Another noteworthy provision creates a new credential: a Child Development Associate (CDA).  Service Centers are authorized to provide training for this.  Districts that seek the grant funding must employ certified teachers who also have a CDA or equivalent training and/or experience. No doubt we will see more rules on this.

Finally, the Lege took advantage of this new law to take another couple of shots at the Common Core. In two places HB 4 emphasizes that Pre-K programs in Texas may not use Common Core standards.  Of course there are no Common Core standards for Pre-K, but you know, we just want to be sure.

DAWG BONE:  WATCH FOR NEW RULES RE: HB 4 AND YOUR PRE-K PROGRAM.

 

 

Dawg Bones

SUGGESTIONS FOR YOUR SUMMER READING LIST . . .

I know you are busy during the summer. Contrary to popular belief, school administrators do not get a three month paid vacation, and in fact, the summertime is often pretty hectic.  But surely you have time to read a book or two.

So here’s my suggestion for the top of your list: “Getting Life” by Michael Morton.  Name sound familiar?  It should.  Mr. Morton is the fellow wrongfully convicted of the brutal murder of his wife.  He spent 25 years as a guest of the Texas Department of Corrections before DNA evidence, The Innocence Project, and a group of incredibly dedicated and talented lawyers wrung his release from the foot-dragging Texas justice system.  Besides being a compelling true life story, the book is noteworthy because Mr. Morton is a gifted writer. He spent his time in prison improving himself, earning both a Bachelor’s and a Master’s degree.   The book gives a chilling portrayal of prison life, counterbalanced with the joy of the simple pleasures of life on the outside after so long behind bars.

There are hundreds of people, wrongfully convicted, who have now been freed due to the work of the Innocence Project. What makes Mr. Morton’s case uniquely inspiring is the genuine forgiveness that he radiates.  He has every reason to be bitter, angry and self-pitying. But there is none of that in the man. I saw him interviewed by Evan Smith of the Texas Tribune at a fundraising dinner recently.  Mr. Smith asked: “How do you keep the anger from spilling out?  How do you repress it?”  Mr. Morton responded: “I don’t repress it. It’s gone. It’s not there anymore.”  The book tells the story of how that happened.

A good book by a good man.  Well worth your time.

DAWG BONE: NO BLUE BELL THIS SUMMER, BUT WE CAN STILL READ GOOD BOOKS.

 

Dawg Bones

CODE OF CONDUCT, ARD COMMITTEES AND CLAIMS OF INNOCENCE

We’re trying to make a manifestation determination, and the parents keep arguing that their child is innocent, that he didn’t violate our Code of Conduct. What to do?

I attended a surreal ARDC meeting many years ago.  Someone at the middle school had started a fire that went out of control and burned the school down.  You will not be surprised to hear that this was a violation of the Code of Conduct.  The principal investigated the matter, and concluded that a student—let’s call him Adam—started the fire.  There was no “smoking gun” as it were, proving that Adam started the fire.  And Adam and his parents vehemently denied that he had anything to do with it.  But the principal felt there was enough evidence for her to conclude that Adam did it.

Adam was in the special education program, so an ARDC meeting was necessary to conduct a manifestation determination.  District practice at the time called for the ARDC meeting to be held prior to the general education due process hearing. So we were in the bizarre position of deciding if Adam’s disability caused him to start a fire that his parents contended he did not start.

I learned a few things from that.  One of them was that the general ed due process procedures should happen first. That’s where the arguments over “guilt or innocence” should be made.  If the principal finds that the student violated the Code of Conduct, and the parents disagree with that, they should take it up with the superintendent or the school board, just as a parent of a non-disabled student would do.  They should not make that argument to the ARDC.

This came up in a recent federal court decision involving a Texas district. The student was assigned to DAEP for 60 days due to a violation of the Code of Conduct that the parents claimed he did not commit.  They requested a special education due process hearing where they continued to assert that the student did not violate the Code of Conduct.  They lost there, and took it on to federal court.  They continued to argue about the Code of Conduct.  The judge ruled in favor of the school district, dismissing the parents’ argument as “not relevant” to the issues the hearing officer was to decide.  In other words, the hearing officer should not have addressed this issue—he should have confined his decision to the manifestation determination.

That may sound strange until you go back to the fundamentals about what a special education due process hearing is about.  Special ed hearing officers have jurisdiction over decisions of the ARDC—not the principal or the superintendent.  The ARDC deals with five things, five issues that can be appealed to a hearing officer: 1) identification; 2) evaluation; 3) placement; 4) the provision of FAPE; and 5) manifestation determinations.  The parents, in this case, were not arguing about any of that.  Even though it was a discipline case, they were not arguing about the manifestation.  Like Adam’s parents long ago, they argued that the kid didn’t do it in the first place.  The court said: that’s not what the ARDC deals with, and it’s not what a special ed hearing officer deals with.

The lesson here is that long term disciplinary action involving a student with a disability requires a two-step process.  The two steps should be kept separate and distinct.  Campus administrators investigate the matter and make a decision about whether or not the student has violated the school’s Code of Conduct. That’s the first step, and, of course, it requires due process. The student must be informed of the charge, and have an opportunity to rebut the charge, or otherwise, tell his or her side of the story.

Then it goes to the ARDC—the Admission, Review and Dismissal Committee—for step two.  The ARDC has two functions.  First, it must make a manifestation determination. Then it must make sure that the student will continue to receive a FAPE—Free Appropriate Public Education.

Thus if the parents are trying to convince the ARDC that the student did not commit the offense, they are making the argument to the wrong body.   If the campus administrators determined that the student committed the offense, and the parents disagree with that, they should take it up on appeal to the superintendent or the school board.  The ARDC lacks the power to overturn the principal’s decision.

The case is C.C. v. Hurst-Euless-Bedford ISD, decided by the federal court for the Northern District of Texas on May 21, 2015.

DAWG BONE: LONG TERM SPECIAL ED DISCIPLINE IS A “TWO STEP.”  DON’T MIX THEM UP.

 

 

Dawg Bones

SAD ACCOMMODATIONS

Dear Dawg: One of my teachers sent me a memo that said: “I am SAD.  I’d like to meet with you to discuss how you can accommodate me.”  What the hell is this about?  He’s SAD?!  Well, I’m so sorry about that. I’ve had my SAD days too, but you press on. What am I supposed to do by way of “accommodation”?  Give him a candy bar?  Tell him to take the day off?  Maybe a nice shoulder rub?  I’ve drafted a response, and I’d like your input. Here’s what I plan to say:

Dear Teacher: I hear you are SAD.  Awwwwww!  You poor thing!!   I am soooooo sorry!  Now kindly get over your self pity and get back in the classroom to do the job we pay you to do.  I am often SAD as well. At other times I am HAPPY.  Sometimes I feel ANGRY.  Like when teachers put their personal problems ahead of their professional responsibilities.  That makes me ANGRY.  Sometimes I get so ANGRY that I fire the teacher.  This makes me HAPPY.  I THINK YOU GET THE MESSAGE.

Waddyathink, Dawg?

Dawg:  We think you should slow down, Pardner.  We expect that the teacher did not mean “sad” but rather, S.A.D.—Social Anxiety Disorder.  This condition, previously called “social phobia” is recognized by the DSM-V as a mental disorder.

This came up in an employment case recently decided by the 4th Circuit. The employee claimed that she was terminated because she had a disability (S.A.D.) and because she sought accommodation for it. The court held that she presented a plausible case, and was entitled to a trial to attempt to prove up her facts.

This is one of the first cases to reach a Circuit Court level that addresses the expansion of the Americans with Disabilities Act.  In 2009, Congress deliberately broadened the scope of this law in an effort to cover more people.  In this case, the employer argued that whatever the plaintiff’s condition, it did not “substantially limit” her in any “major life activity.” The plaintiff asserted that her S.A.D. rendered her substantially limited in her ability to “interact with others.” The employer countered by arguing that “interacting with others” is not a “major life activity.”

The statute (ADA) includes a list of “major life activities” and it does not include “interacting with others.” But the EEOC regulations do include it.  The court held that the ADA list was “nonexhaustive” and it was well within the discretion of the EEOC to include “interacting with others” as a major life activity. The Court looked at it this way:

Few activities are more central to the human condition than interacting with others.  If “bending” and “lifting” are major life activities, [cite omitted] it is certainly reasonable for the EEOC to conclude that interacting with others falls in the same category.”

So don’t blow this off, Buddy.  Call your teacher in for the beginning of the “interactive process.” Keep in mind that S.A.D. as a mental disorder is a serious condition—it’s a long way from simple shyness or slight nervousness in social situations. But if a teacher claims to have this condition, you should explore it, and determine if accommodation is called for, and reasonable.

The case is Jacobs v. North Carolina Administrative Office of the Courts, decided by the 4th Circuit Court of Appeals on March 12, 2015.

DAWG BONE: S.A.D. IS NOT THE SAME THING AS SAD. 

 

 

Dawg Bones

CAN PHOTO ID BE REQUIRED TO ATTEND A SCHOOL BOARD MEETING?

Can we require people who attend our school board meetings to show a photo ID?

More and more government buildings are increasing security by requiring visitors to show a photo ID.  Most of the schools I have visited of late have imposed this requirement, and so I have grown accustomed to being run through the system before I gain entry.  The Attorney General was asked how such a requirement would mesh with the Texas Open Meetings Act.

Courts have made it clear that an “open meeting” must be physically accessible to the general public.  You can’t call your meeting in a private dining room, or in a school office halfway across the state.  Suppose, however, that your local school district adopts a requirement that everyone who comes to the school board meeting must show a proper government-issued photo ID, like the ones you show at the airport. The meeting is “physically accessible.” But if you don’t happen to have one of those IDs, they won’t let you in. Is that OK?

Mr. Paxton’s opinion notes that a lot of fact issues would have to be considered in resolving that question, and his office is not the place to resolve fact issues. But he did render a carefully worded, lawyer-like opinion:

A court is unlikely to conclude as a matter of law that the Open Meetings Act prohibits a governmental body from holding meetings at a location that requires the presentation of photo identification for admittance. 

Interestingly, the Opinion points out that some states (Kentucky, Michigan, Nebraska) have adopted statutes that specifically prohibit any sort of ID requirement. Texas has not, and thus the question was ripe for an AG Opinion.

If your school board is thinking of imposing such a requirement, advance input from your school attorney would be very wise. As the AG Opinion notes, a court addressing an issue like this would probably “weigh the need for the identification requirement as a security measure against the public’s right of access guaranteed under the Act.”  Your attorney can help with that analysis.

The opinion is Attorney General Opinion KP-20, issued on May 11, 2015.

DAWG BONE: BE CAREFUL ABOUT TURNING PEOPLE AWAY AT AN OPEN SCHOOL BOARD MEETING.

 

 

Dawg Bones

IF A LAW FIRM CHANGES ITS NAME, IS IT THE SAME LAW FIRM?

It’s a big day for us at the law firm formerly known as Walsh, Anderson, Gallegos, Green and Trevino!  We have changed our name!  We are now:

WALSH, GALLEGOS, TREVINO, RUSSO and KYLE

And yes, we are absolutely the very same firm.  Only the name (and the letterhead, the business cards, the website, the coffee mugs, the baseball caps, the pens and the other swag) has changed.

What brought this about?  Well, as many of you know, Dorcas Green left us recently to travel to Ireland and other fine places and otherwise enjoy retirement with her husband Gary.  So it was time to drop the “Green” and add the next in line.  But since we were going to need to change the name in light of Dorcas’s departure, we decided it was time to make an additional change as well. Denise Anderson retired from the firm some years ago. We kept her name in accordance with State Bar regulations, and Denise has stayed in touch with us and done occasional work, when not otherwise occupied playing with her grandchildren in Arkansas.  We decided we wanted to use the firm name to promote those lawyers who are still actively practicing with us, the ones that you know.  Moving Elena Gallegos’s name up a notch was also a way for us to celebrate our two-state practice, since Elena inaugurated our Albuquerque office.

Elena and I made a phone call to Denise to let her know that we thought it was time to drop her name from our corporate title. Denise was most gracious about this, as we knew she would be.

So today is the day!  I am very pleased to see my longtime partners, Bob Russo and Paige Kyle, both in our San Antonio office, attain this recognition.  Oscar Trevino has served as our leader and managing shareholder for over a decade, and so I am pleased also to see his name move up a notch.  Elena now enjoys the second longest tenure among the lawyers in our firm. She clerked for us while attending UT Law School, and then joined the firm upon graduation. She has been here her entire career, first in Austin and then in New Mexico.

Our state is very diverse, and changing in its demographics. We are proud of the fact that our name reflects that.

So get used to it, folks. As of today, the phone will be answered “Walsh Gallegos.”  The website is www.walshgallegos.com.  Email addresses remain the same, Thanks Be to God!!

Same firm. Same excellent service.  A new name for an exciting new day.

DAWG BONE: THE DAWG NOW WORKS AT WALSH GALLEGOS, NOT WALSH ANDERSON.

Dawg Bones

NATIONAL TEACHER OF THE YEAR HAS SOME THINGS TO SAY!

Here is something for Texas educators to brag about—Shanna Peeples, an English teacher at Palo Duro High School in Amarillo, is the National Teacher of the Year!  Just back from being honored in Washington, including sharing a cup of joe with President Obama, Shanna gave an interview to the Texas Tribune.  Here are six things worth noting from that interview.

  1. Relationships matter. When asked how she motivated students to take more challenging classes, Shanna spoke of the importance of relationships:  “A lot of students come in and eat lunch in my room.  We have a lot of dinner table conversations that maybe they are not having with a parent, but they are having with me or another teacher.  That is kind of how we build that relationship with them to help push them, based on what they say they want to accomplish.”
  2. We need more training. Shanna came to teaching directly from journalism which she said gave her a “depth of experience.”  My sense is that she was speaking of “fresh out of college teachers” when she said: “I think for many teacher candidates, we almost need to do what they do with doctors.  I don’t think one semester is enough of student teaching.”
  3. Student mental health. When asked if she sees trauma in her classroom, she said: “That is the most woefully underfunded need of students. It is a sort of invisible need that we don’t think about and that is mental health services…We need a dedicated mental health counselor. We see students that have struggled with depression, severe anxiety, what really seems like post-traumatic stress disorder. They have seen horrible things, and that’s not just my refugee students. That includes regular students growing up with domestic violence. Safety is the number one thing you have to deal with with children in trauma. They have to feel physically safe and emotionally safe. You can’t learn when you are terrified. That is something I hope to bring more attention to in this position. There are particular needs for students in trauma and how trauma is related to poverty.”
  4. Teacher evaluation.  “I am concerned about the idea that is being floated about tying teachers' salaries to test scores.  A discussion we need to have is how you make that system fair.”
  5. Pre-K. “It sounds crazy, but you can tell at the high school end who had Pre-K.  You can see.  Tons of research supports that early intervention pays off in huge dividends down the roads.  It is an initial investment up front, but you are not having to remediate at the other end, which requires expensive solutions.”
  6. Standardized testing. “What you assess drives your curriculum.  The assessment can see what you know, but it can’t see what you can do.  It is notoriously difficult to pick up character, persistence, creativity, innovation, collaboration off a standardized test.”

Members of the Texas Legislature: are you listening to this?  It would be nice if our leaders paid more attention to Shanna Peeples than to Bill Hammond.

The entire interview is at www.texastribune.org/2015/05/08/shanna-peeples-tt-interview/

DAWG BONE: SHANNA PEEPLES KNOWS MORE ABOUT PUBLIC EDUCATION THAN DAN PATRICK DOES.  LET’S LISTEN TO HER.

 

 

Dawg Bones

WHY DO LAWYERS KEEP FILING FEDERAL LAWSUITS OVER CORPORAL PUNISHMENT?

Trey Clayton, a high school student in Mississippi, filed a federal lawsuit alleging that his constitutional rights were violated when the assistant principal whacked him on the buttocks three times with a paddle.  No doubt that hurt, but the real damage occurred when Trey subsequently fainted and fell, face first, on a concrete floor.  With a broken jaw and five missing teeth, the student asserted his rights under the 8th and 14th Amendments.

The 5th Circuit dismissed the case.  The Supreme Court long ago held that the 8th Amendment (the one about “cruel and unusual” punishments) applies only in the context of criminal prosecution, not student discipline.  So the 8th Amendment argument did not work.

Nor did the argument about Due Process under the 14th Amendment.  Students are entitled to due process in connection with corporal punishment, but that process can consist of remedies available under state law.  Does Mississippi allow students to recover damages from school officials who are excessive in administering corporal punishment? It does. The 5th Circuit held that this was all of the process that was due.

The most creative argument Mr. Clayton put forth was the Equal Protection claim under the 14th Amendment. The argument was that the district paddled boys more often than girls, and that this was based on the “institutional bias” that boys violated school rules more often.  There was no evidence in the record to support this claim.

If the point of the lawsuit is to recover financial damages for the busted jaw and knocked out teeth, a simple “excessive force” claim in state court may have been more effective.  Often, however, suits like this are efforts to persuade a federal court to make a bigger point, by declaring corporal punishment unconstitutional.  Once again, that did not work.

The case is Clayton v. Tate County School District, 2014 WL 1202515 (5th Cir. 2014, unpublished).

DAWG BONE: CORPORAL PUNISHMENT IS CONSTITUTIONAL.  BUT EXCESSIVE CORPORAL PUNISHMENT VIOLATES STATE LAW

Dawg Bones

CAN “IT’S JUST LUNCH” BE SEXUAL HARASSMENT?

The Texas Supreme Court has held that a male supervisor inviting selected female employees to lunch could not possibly be sexual harassment.  The phrase “it’s just lunch” does not show up in the court’s opinion, but that seems to be the sentiment.

Debra Nicholas, the plaintiff, did not allege that she was the target of sexual harassment.  She argued that she got fired because she opposed a discriminatory practice—the sexual harassment of staff members by a supervisor.  Piecing the facts together from the court’s opinion, it looks like this all began when Greg Flores, a recently hired VP in the company, invited a female employee to go to lunch with him. Then he invited another one.

One of these women complained about this to the General Counsel, saying it made her feel uncomfortable and harassed. If it continued, the employee warned, she would file a formal complaint.

The General Counsel notified the company CEO in an effort to head off any formal complaints. The CEO brought Ms. Nicholas, his chief of staff, into the meeting.

According to Ms. Nicholas, she and the CEO followed up by meeting with Mr. Flores, informing him of the concerns and advising him to avoid such “risky” behavior.  Ms. Nicholas reported that Mr. Flores agreed to change his behavior.

That would have been the end of it, except that three years later, Ms. Nicholas was fired.  There had been an organizational shakeup, resulting in Ms. Nicholas working as Mr. Flores’s assistant.  Then the company decided to eliminate that position as a cost cutting measure. Without interviewing Ms. Nicholas for any other position, the company just let her go.

It felt like belated retaliation to Ms. Nicholas, and she sued. The jury was convinced, awarding her almost $1,000,000 in damages.  That’s enough to justify an appeal all the way to the Supreme Court.

The Supreme Court tossed the whole thing out, ruling that the district court never had jurisdiction of the case.  Why? Because the suit was against SAWS—San Antonio Water System, which is a governmental entity owned by the City of San Antonio. SAWS, like Texas school districts, is immune from most lawsuits.  That immunity does not apply to a case properly brought under the Texas Commission on Human Rights Act.  And a case alleging that the plaintiff has been retaliated against for opposing a practice that is discriminatory under that law would be sufficient to override the immunity and give the court jurisdiction.

However, the Court held that Ms. Nicholas had not properly alleged a case that fit the statute.  She was required to allege that she opposed a discriminatory practice—not behavior that might evolve into a discriminatory practice.  In its critical ruling, the Court said: “Regardless of what Nicholas subjectively believed about Flores’s conduct, no reasonable person would believe that a handful of lunch invitations amounted to sexual harassment actionable under the TCHRA.” (Emphasis added).

In other words….it was just lunch!

Given a possible “formal complaint,” Ms. Nicholas’s warning to Mr. Flores was probably a wise and prudent precautionary measure.  But it was not a statement of opposition to a “discriminatory practice.” Thus, in legal parlance, Ms. Nicholas had not engaged in any “protected activity.” Case dismissed. There goes the big verdict.  So long to the $1,000,000.

The case is San Antonio Water System v. Nicholas, decided by the Texas Supreme Court on April 24, 2015.

DAWG BONE: TEXAS SUPREME COURT JUSTICES RESERVE THE RIGHT TO INVITE THEIR LAW CLERKS TO LUNCH.