The Dawg wishes a Happy Memorial Day to all of you, with high honors to those who have made the ultimate sacrifice while serving our country in the military. We salute you, and honor the lives you lived.
DAWG BONE: HOW FORTUNATE ARE WE, TO BE LIVING IN AMERICA.
It is the tradition in many schools that graduating seniors hand some small object to the principal as the principal shakes the hand of the graduate. I witnessed a principal collecting gummy worms (is that what they’re called?) one time. But the best story I heard was of the principal who had to stuff over 400 condoms into his pockets during the ceremony.
One school I know of banned any sort of logo or decoration of the cap and gown. So a kid showed up with a Texas A&M logo on the top of the cap. Hmmmm. On the one hand, rules is rules!! On the other hand, we should celebrate and honor those students who move on to a four-year college. Furthermore, this was in the heart of Aggieland. “Whoops” were heard throughout the high school stadium that night. What to do?
You need to be prepared for the valedictorian who switches speeches at the last minute, the smoke bomb going off during the ceremony, and who knows what else.
My favorite part of graduation night is the “please hold your applause until the last student crosses the stage.” Good luck enforcing that.
I have been privileged to give the graduation speech at a number of high school graduation ceremonies. My main advice to the graduates on this occasion is to embrace the utter cheesiness of the event. There they are wearing silly clothes. Mom is crying and Dad is popping pictures. They will hug classmates that they haven’t spoken to in three years, and perhaps apologize to the teacher they tormented. Solemn speeches are given (not heard—just given) and the school song is sung with fervor. It’s the cheesiest moment of their otherwise way cool lives. So they need to embrace it.
So in honor of the upcoming graduations throughout the state, I offer this poem:
IT ISN’T EASY…..BEING CHEESY
IT ISN’T EASY……BEING CHEESY.
THEY’LL CALL YOU THE FOOL WHEN YOU DARE BE UNCOOL
AND STAND IN THE WAY OF WHAT’S POPULAR TODAY.
BUT CHEESY FOLKS SHOULD TAKE UP THEIR SWORDS.
THEY SEE THE DIRECTION WE ARE HEADING TOWARDS.
WE NEED THEM NOW IN OUR SCHOOLS AND ON OUR BOARDS.
WE SHOULD THINK OF WAYS TO GIVE THEM REWARDS.
FOR IT’S THE CHEESY FOLK WHO STAY TO THE LAST.
WHO FINISH THE JOB THOUGH THEY MAY NOT BE FAST.
WHO CLEAN UP THE PLACE WHEN THE FUN IS ALL PAST.
WHO DO THE RIGHT THING THOUGH THEY MAY BE HARASSED.
THEY DO THE RIGHT THING NOT FOR DOLLAR OR PESO.
THEY DO THE RIGHT THING NOT BECAUSE THEIR BOSS SAY SO.
THEY DO THE RIGHT THING ‘CAUSE THEY ARE PEOPLE OF QUESO.
SO WHEN YOU SEE A CHEESY GUY DON’T TREAT HIM LIKE A BUG.
DON’T TELL A CHEESY GAL THAT YOU THINK SHE’S A SLUG.
DON’T WAIT TILL THE TRUTH FROM WITHIN YOU IS DRUG.
GIVE THE CHEESY FOLKS A THANKS AND A SMILE AND A HUG.
DAWG BONE: IT ISN’T EASY…..BEING CHEESY.
A recent case from California nicely illustrates how courts analyze parental allegations of illegal retaliation. The parent alleged that the district retaliated against him by cutting off his communication with staff members, and seeking to impose a restraining order on him. The parent alleged that this was done to punish him for his advocacy for his child.
The school district asserted that it was merely trying to protect its staff from feeling harassed and threatened by a parent who had filed numerous complaints at all levels, alleging falsification of records and other illegal and unethical conduct.
The parent asserted that the school’s stated reason was baloney, or in legal parlance “a pretext” designed to hide the real reason.
The court held that the filing of a suit to seek a restraining order could be viewed as an “adverse action.” Thus the court proceeded to assess whether the school district’s stated reason was the real deal, or, as the parent alleged, a “pretext” to hide its dark heart and retaliatory motive.
This gets courts into the difficult position of trying to figure out: “what was the REAL reason?” The court acknowledged how difficult this is: “Courts have recognized that true motivations are particularly difficult to ascertain.” Despite the difficulty, courts do this all the time. Court cases frequently turn on “true motivations.” This is so in criminal law, where the prosecution must prove a certain mens rea, or state of mind, to make its case. It is also true in cases alleging discrimination in employment. Was the employee fired because he performed poorly? Or was it because he is a Muslim?
However, courts usually make these tough decisions only after hearing all of the evidence that both sides offer. In other words, they do so after a full blown trial of the case. Here, the school district was seeking a “summary judgment”--trying to persuade the court to dismiss the case in its early stages, prior to a full trial. The court refused, and noted that factual determinations about “true motivation” are “generally unsuitable for disposition at the summary judgment stage.”
There are practical implications here, which help explain why retaliation claims against school districts are on the rise. Retaliation claims almost always turn, in part, on “true motivation.” The court here notes that “true motivation” will not usually be determined at the preliminary stage, but rather, only after a full blown trial. Summary judgment rarely works. This extends the life of the lawsuit, making its defense more costly and risky. Thus the price of a potential out of court settlement goes up. When the price of litigation and settlement goes up, retaliation claims become more attractive to plaintiffs. Thus, retaliation claims continue to be on the rise.
The case is Lee v. Natomas USD, decided by the federal court for the Eastern District of California on February 25, 2015. We found it at 65 IDELR 41.
DAWG BONE: RETALIATION CLAIMS OFTEN TURN ON THE “TRUE MOTIVATION” FOR WHAT THE SCHOOL DISTRICT DID.
A recent case from Illinois reminds us that accommodations for students with disabilities are designed to level the playing field—not to give any student an advantage over others. The case involved K.P., an 8th grader in Chicago whose IEP called for her to use a calculator in her math class. The IEP also permitted any “allowable” modifications in standardized testing.
Chicago requires 8th graders to take a MAP test (Measure of Academic Progress) as part of the application process to the city’s more selective high schools. The math portion of the MAP test is taken on a computer, and on some of the questions, a calculator pops up on the screen. Thus on those questions, all students are allowed to use the on-screen calculator. On other questions, there is no calculator provided and students are expected to do their own calculations without a device.
When K.P.’s mother was informed that her daughter would not be allowed to bring her own calculator to the test, she sued the Chicago Public Schools, alleging that this violated IDEA and the ADA.
The court ruled for the school district. The critical factor was that the math portion of the MAP is designed to assess the student’s ability in math—including the ability to do mathematical calculations without assistance. An accommodation is not “reasonable” if it would cause the test results to be invalidated. Referring to the use of a calculator to work out math problems, the court said:
That is not a reasonable accommodation but a substitution of artificial intelligence for the very skill the Test seeks to measure.
The case is K.P. v. City of Chicago Public School District #299, decided by the federal district court for the Northern District of Illinois on February 25, 2015. We found it at 65 IDELR 42.
DAWG BONE: TESTING ACCOMMODATIONS ARE TO MAKE THINGS FAIR, NOT TO PROVIDE AN ADVANTAGE.
“The kids are calling me ‘retard, chickenhead, twitch, tic-toc and spaz.’ Isn’t this bullying????”
Jamie and Troy Nevills alleged that their son was subjected to name calling and worse while he was attending school in Mart ISD. The boy attended MISD schools from kindergarten until 7th grade, when the parents pulled him out and filed a lawsuit alleging that the school district ignored student-to-student harassment based on disability.
The student was never identified by the district as having a disability under IDEA or Section 504 but that did not prevent the lawsuit. The parents alleged that the school knew very well that their son had a form of Tourette Syndrome which produced verbal and facial tics, and made it difficult for him to speak or concentrate.
In a case involving student-to-student harassment, the parent has to prove five things in order to pin liability on the school district. In this case, they were: 1) that the student has a disability; 2) that he was harassed based on the disability; 3) that the harassment was severe or pervasive to the point that it altered the condition of his education and created an abusive educational environment; 4) that the school knew about the harassment; and 5) that the school was deliberately indifferent to the harassment.
In many cases like this, the school district will concede one or more of those five facts. For example, if the student has been identified under IDEA or Section 504, there is not much point in contesting Factor Number One—the school itself has identified the student as having a disability. In this case, however, the district disputed every one of those five critical facts. The boy had not been identified or served under IDEA or Section 504 and the school denied knowledge of any condition that would qualify as a “disability.” The school denied that the student was harassed based on his disability, and denied that anything “severe” or “pervasive” occurred.
If the school district can conclusively defeat the parent on any one of the five factors, the court will dismiss the case. The parent has to prove all five—so the failure of any one of them is fatal.
Here, MISD filed a Motion for Summary Judgment. Among other things, the Motion asserted that no reasonable jury could ever conclude that the school’s response to this situation was “deliberately indifferent.” The 5th Circuit honed in on that one factor, and issued a decision in favor of the district.
That summary makes the whole process sound simple, but it is not. The court ruled in favor of the district because of the record keeping, the documentation, and the affidavits of school personnel that showed how the school responded to the instances cited by the parents. Much of the parents’ case was based on allegations that the school did not punish students who picked on their son. The record, however, showed that the school responded to the instances it knew about. Moreover, the principal brought in an outside organization to do some training of the students about bullying.
The 5th Circuit cited its earlier decision in Estate of Lance v. Lewisville ISD, 743 F.3d 982 (5th Cir. 2014) for the notion that public schools are not expected to “purge” themselves of all manner of student-to-student harassment. Courts are expected to grant “a high level of deference” to school officials.
Judges do not want to be assistant principals. Nor does the law encourage judicial micromanagement of student discipline cases. That’s why you see phrases like “high level of deference.” But keep in mind that the officials in Mart ISD were deferred to because the court could see that they were attentive to what was happening in their schools. They took action. They investigated. They trained. They documented.
The case is Nevills v. Mart ISD, decided by the 5th Circuit on April 21, 2015.
DAWG BONE: YOU GET A “HIGH LEVEL OF DEFERENCE” BUT ONLY IF THE JUDGE SEES SOME THOUGHTFUL DECISION MAKING ON YOUR PART.
You never know what you will bump into on the Internet. I was doing a little light research on how many presidents had served as school teachers. You get different answers to that question, depending on how you phrase it. The number of former teachers who became presidents ranged from five to 10. But of the 10, several of them were college professors (Wilson) or law school profs (Clinton, Obama). When you look for honest-to-God teachers, you get only five. Four of them taught in the 18th or 19th Century (Adams, Fillmore, Garfield and Cleveland). The only one to have taught in a 20th Century school was our very own Texan, Lyndon Baines Johnson.
But the most interesting tidbit I came across was about Garfield. It seems that he did not win the respect of his students until he won a violent, physical fight with a student! Mon Dieu!! Can you imagine any of the current crop of presidential candidates having that incident on their resume? Just imagine their responses to Wolf Blitzer’s questions:
WOLF: Governor Bush, we understand that when you were a public school teacher, you once got into a fight with one of your students. Comment?
BUSH: Not a fight, Wolf. Just a bit of redirection. After all, he was in danger of falling behind. I followed my brother’s lead, allowing no child to be left behind.
WOLF: Senator Paul, we understand that when you were a public school teacher, you once got into a fight with one of your students. Comment?
RAND PAUL: Not really, Wolf. It was simply an exercise in freedom. I was teaching the students some basic concepts about our Constitution. For example they are free to hit me. I am free to hit back. Freedom. That’s what it was about.
WOLF: Governor Perry, we understand that when you were a public school teacher, you once got into a fight with one of your students. Comment?
RICK PERRY: Not so, my friend. You can’t believe everything you read in the left wing media.
WOLF: Mrs. Clinton: we understand that when you were a public school teacher, you once got into a fight with one of your students. Comment?
HILLARY CLINTON: Not really a fight, Wolf, just more of a minor tussle. She was trying to break the glass ceiling, Wolf. Everyone knows that I am the one who is going to break the glass ceiling. So I took corrective action with the young lady.
WOLF: Senator Cruz, we understand that when you were a public school teacher, you once got into a fight with one of your students. Comment?
TED CRUZ: He’s in this country illegally, Wolf. If the federal government would carry out its responsibilities to secure the border, action like this would not be necessary.
WOLF: Governor Christie, we understand that when you were a public school teacher, you once got into a fight with one of your students. Comment?
CHRIS CHRISTIE: Damn straight. Beat the tar out of him. You got a problem with that?
We’re guessing that Garfield never had to answer the question.
There is much litigation these days about the use of physical force by teachers. Advocate groups continue to seek ways to clamp down on the use of physical restraint. The legislative session will soon be over, and we will see at that time if SB 1584 or any other legislation on this issue makes it to the Governor’s office.
DAWG BONE: KEEP AN EYE ON SB 1584 REGARDING RESTRAINT OF STUDENTS.
The Texas Legislature has enacted a new law that will enable some kids to graduate this year, even though they came up short on an End of Course exam…or two. Governor Abbott has signed SB 149 and it’s in effect NOW. This gives you a very short time frame to put this new provision in place.
It’s interesting to note that the same politicians who put the tough new standards in place change their tune when they see how individual students are affected. Now, all of a sudden, they create a “pathway to graduation” for students who have met all the other requirements, but failed to perform satisfactorily on an End of Course exam. It would be a good idea if our representatives would ALWAYS take into account how individual people will be affected by the law.
You need to get busy on this. The law deals with those students who would be graduating this year, but for their performance on EOC exams. Each such student must have an “Individual Graduation Committee” (IGC) which will be required to consider a slew of information and factors and then decide if the wannabe graduate gets to graduate. The kid doesn’t “walk” unless the IGC vote is unanimous. I don’t envy those of you who will be serving on these committees.
The lawyers at my law firm are getting lots of questions about this, and we are happy to help. So give us a call at Walsh, Anderson, Gallegos, Green and Trevino, P.C.
Much more legislation is in the pipeline, but this is the first to hit the street. Good luck.
DAWG BONE: GRADUATION JUST AROUND THE CORNER AND THE RULES CHANGE! YIKES!!
The parents revoked consent for us to provide special education services, but this kid is a real behavior problem. If he commits a serious offense, do we have to do a manifestation determination?
Houston ISD faced that dilemma during the 2013-14 school year. According to the report of a subsequent OCR investigation, the parents revoked consent for special education services on November 7, 2013. From then until the following March the school suspended the student out of school 16 times. The district did not consider whether or not this series of removals amounted to a “change of placement.” Nor did the district conduct a manifestation determination. After all, the student was no longer in the special education program, no longer protected by IDEA.
OCR was brought in to investigate a parent complaint of discrimination over this issue and two others. OCR did not find the district at fault with regard to any of the three issues presented. One was dismissed because it was already the subject of another proceeding. A second issue was dismissed for lack of evidence to support it. But on the discipline issue, the district agreed to a voluntary resolution.
That resolution agreement required the district to 1) re-evaluate the student as per Section 504; 2) belatedly conduct a manifestation determination regarding those 16 suspensions; and 3) if the behavior is deemed to be a manifestation of the student’s disabilities, provide compensatory services.
Note that OCR did not order the district to do this and did not express the opinion that the district was required to do this. The law on this subject is murky. Parents who revoke consent for services under IDEA should be told very clearly that the protections of IDEA regarding discipline will no longer be provided. But as to Section 504, we have no clear guidance. Courts have come to different conclusions about the availability of Section 504 after IDEA services cease. None of the cases, to date, has directly addressed the issue of student discipline, the notion of “change of placement” and the requirement of a manifestation determination.
The best practice is to consult with your school district attorney on this issue, as it calls for a careful case-by-case analysis. We found the Houston ISD matter at 65 IDELR 52. The OCR report is dated November 26, 2014.
DAWG BONE: ON REVOCATION OF CONSENT, GET YOUR LAWYER INVOLVED!
The latest Dear Colleague letter from the OCR reminds us that every school district, college or university that receives federal financial assistance needs to designate someone as Title IX Coordinator. The letter points out that having a Coordinator with genuine authority goes a long way toward keeping your school in compliance with the law.
The letter says that your Title IX Coordinator should not have any conflicts of interest. What does that mean? The letter says “For example, designating a disciplinary board member, general counsel, dean of students, superintendent, principal, or athletics director as the Title IX coordinator may pose a conflict of interest.” So the OCR’s strong suggestion is that you should have a fulltime Title IX Coordinator on staff, someone with no other job duties.
This presents some practical problems, especially in small districts. Consider Mudflap ISD, where the superintendent starts his day by driving the bus. He also serves as business manager, director of HR, athletic director, and occasionally substitutes in the math class. Mudflap does not have a lot of money to be spent on administrative positions. So they are supposed to hire a fulltime Title IX Coordinator?
The feds don’t seem to recognize that there is a big difference between the University of Texas and Mudflap ISD.
But you ought to read the letter for yourself. It’s important. http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201504-title-ix-coordinators.pdf
DAWG BONE: BE SURE YOU HAVE A TITLE IX COORDINATOR WITH ADEQUATE AUTHORITY AND TRAINING.
Susan Graziosi, a sergeant with 25 years of experience with the Greenville, Mississippi police department, was frustrated. She had just learned that the PD was sending no one to the funeral of an officer who was killed in the line of duty in the nearby town of Pearl. This struck the sergeant as disrespectful. Moreover, it was evidence, to her, of a deeper problem. She vented on Facebook.
Here are some excerpts:
This is totally unacceptable.
Dear Mayor, can we please get a leader that understands that a department sends officers of [sic] the funeral of an officer killed in the line of duty?
We had something then that we no longer have….LEADERS.
You’ll be happy to know that I will no longer use restraint when voicing my opinion on things. Ha!
If you don’t want to lead, can you just get the hell out of the way?
Since some of this was posted on the mayor’s designated public Facebook page, it quickly came to the attention of Sergeant Graziosi’s boss, Police Chief Cannon. The Cannon went boom two days later—he fired the sergeant.
Graziosi sued the city and the chief, alleging that they had trampled all over her free speech rights. The case went to the 5th Circuit, which ruled in favor of the city and the chief. The court held that Ms. Graziosi was speaking “as a citizen” when she posted on Facebook. Posting on Facebook was not a routine part of her job duties. Even though she clearly identified herself as a police officer, this still qualified as speech “as a citizen” for purposes of the First Amendment analysis.
But to have legal protection for what they say, public employees must not only be speaking “as a citizen,” they must also show that they are speaking about “a matter of public concern.” This is where Sgt. Graziosi lost the case. The court took into account the form, the context and the content of her remarks, and held that the sergeant’s posts “quickly devolved into a rant attacking Chief Cannon’s leadership.” It was “akin to an internal grievance” rather than a matter of genuine concern to the general public.
That was enough for the city to prevail in the litigation, but the court proceeded to make one more point: that the city’s interests in maintaining discipline, loyalty and harmony within the police department outweighed Sergeant Graziosi’s interests. The fact that this was a police department weighed heavily here. As the court noted, the police department is a “paramilitary organization” where discipline, loyalty and healthy working relationships are particularly important.
So: what about that teacher who takes to Facebook late at night with an attack on the superintendent or principal? Can the teacher be fired? Of course, all we can say for sure about that is “it depends.” But this case from Mississippi gives you a good idea of what it depends upon. Was the teacher speaking “as a citizen” on “matters of general concern”? Does the school district’s interest in harmony and efficiency in the workplace outweigh the interests of the teacher?
The case is Graziosi v. City of Greenville, Mississippi, 775 F.3d 731 (5th Cir. 2015).
DAWG BONE: THINK TWICE BEFORE YOU POST ON FACEBOOK. THEN THINK AGAIN. AND THEN THINK AGAIN.