All posts by Jim Walsh

Dawg Bones

In honor of Mother’s Day, let’s talk about discrimination based on pregnancy!

Happy Mother’s Day to all you mothers out there in Dawgbone Land!  We hope that your loved ones celebrate and honor you all weekend.  As for the legal issues, it just so happens that the U.S. Supreme Court recently weighed in on a case interpreting the Pregnancy Discrimination Act.  What better topic for Mother’s Day!

Peggy Young, UPS driver, filed the suit.  When she got pregnant in 2006 after several miscarriages, her doctor put her under some pretty tight restrictions.  She was told not to lift anything over 20 pounds for her first 20 weeks, and nothing over ten thereafter.

If you’ve ever watched those athletic looking dudes and dudettes popping out of the brown vans, loaded down with packages, you know that this restriction would be a problem.  Sure enough, UPS requires its drivers to lift 70 pounds alone, and 150 with assistance.

Of course there were other UPS drivers that were restricted in lifting, or were otherwise limited in ability to perform, and UPS accommodated many of them.  For example, if you got hurt on the job, UPS would accommodate you.  If you had a condition that qualified as a disability under the ADA, “Brown” would take care of you.  If you were a driver who lost your Department of Transportation certification due to a failed medical exam, they would give you an inside job.

But if you were pregnant and could not lift when your job requires lifting, you were out of luck.  This hit Ms. Young pretty hard.  She ended up staying home without pay, and lost her medical insurance coverage.  With a baby on the way.  Ouch.

So she sued, alleging that UPS discriminated against her based on pregnancy, which is automatically a form of sex discrimination.  UPS responded with the argument that what they did to her had nothing to do with pregnancy. Pregnant women, UPS said, were treated just like everyone else. They would be accommodated if they 1) got hurt on the job; 2) had a condition that qualified for ADA protection; or 3) needed an inside job due to loss of DOT certification as a driver.  UPS said that non-pregnant workers who got injured off the job, like a guy who hurt his back playing pickup basketball on the weekend, would be treated just like Ms. Young. So it didn’t have anything to do with her pregnancy.

UPS won at the district court level and the 4th Circuit. But the U.S. Supreme Court vacated that judgment, holding that the lower courts applied the wrong analysis.  The key language in the law is that pregnant workers must be treated the same “for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.”  The Court’s majority held that this language allows Peggy Young to proceed with her lawsuit.  UPS will have the opportunity to defeat her lawsuit by showing that its refusal to accommodate her delicate condition was a “legitimate, non-discriminatory” reason.  But if Ms. Young can show, for example, that UPS “accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers” she likely has a good case.

Chief Justice Roberts joined the four liberals on this one, and Justice Alito agreed with the judgment, while writing his own concurring opinion. So it is reported as a 6-3 decision in favor of Ms. Young.  Interesting to note that the men on the Court split 3-3.  Ms. Young won because she got the support of all three of the justices who are capable of experiencing pregnancy.

So take that as a Happy Mother’s Day card from the U.S. Supreme Court.  The case is Young v. United Parcel Service, Inc. 135 S.Ct. 1338, decided on March 25, 2015.

DAWG BONE: IF YOU ACCOMMODATE SOME WORKERS, AND NOT THE PREGNANT ONES, ASK YOURSELF: WHAT’S THE EXPLANATION FOR THAT?

 

 

Dawg Bones

If you are using “Restorative Discipline” do you need to change the Code of Conduct?  

 

Many districts are embracing Restorative Discipline or at least moving in the direction of restorative practices in connection with student discipline.  One question that comes up is about the relationship between a restorative approach and the district’s Code of Conduct.

Chapter 37 of the Education Code requires a Code of Conduct, and spells out some of the required content.  The Code does three main things.  First, it notifies the students and their parents of what kind of conduct is expected in the school setting.  Second, the Code lays out the types of misconduct that might lead to exclusionary discipline, such as suspension, expulsion, or DAEP.  Third, the Code spells out some of the due process requirements.

The law makes only a vague reference to the methods you choose to use.  T.E.C. 37.001(a)(8) requires your code to provide the “methods, including options” for 1) managing students; 2) disciplining students; and 3) preventing and intervening in student discipline problems.

So some general statement about your classroom management techniques is probably appropriate for the Code, but this is not the place to go into detailed descriptions of RD or any other program.  Some districts are using (Positive Behavioral Interventions and Supports). Some employ MTSS (Multi-Tiered Systems of Support).  Some are now moving toward RD (Restorative Discipline). Many are seeking to find the best mix of all of these practices, each of which is designed to create a healthy campus climate.  It’s very important that any such plan be implemented faithfully with plenty of training for staff.

Your Code of Conduct will very likely require revision this summer based on new legislation.  In that context, some general statement about “methods” that you use would be appropriate.  But save the detail for the training and implementation.

DAWG BONE: SUMMERTIME APPROACHES.  LET’S START THINKING ABOUT NEXT YEAR’S CODE OF CONDUCT.

 

 

Dawg Bones

Can board members have access to student records? 

Wallace Hall, a member of the UT Board of Regents, has asked for an opinion from the Attorney General about his right of access to records held by UT. Citing earlier AG Opinions, Regent Hall claims “an inherent right of access” to records held by the university.  It may turn out that the AG will not respond to Mr. Hall’s request. The Board as a whole has filed a brief with the AG, asserting that Mr. Hall, as an individual member of the Board, does not have the authority to obtain an official opinion from the AG.

We shall see what happens.   But let’s dive into this issue of board member access to records.  After all, it comes up not just in higher ed, but also with school board members.

Those earlier opinions citing “an inherent right of access” were drawing a distinction between the access of a board member vs. a member of the general public.  They were not specifically addressing the issue of student records.   Some of the records sought by Mr. Hall are “student records.”  This complicates the issue.

The “inherent right of access” cited by board members  is based on state law—the Public Information Act.  Access to student records, however, is governed by federal law—the Family Educational Rights and Privacy Act (FERPA).  Under FERPA, as any good teacher knows, student records can be disclosed to a school official only if that official has a “legitimate educational interest” in the records.  Thus not every teacher has access to all of the student records kept by the school district.

Consider the following hypothetical.  You are a teacher.  You are losing sleep due to the kid who lives next door who is practicing on his new drum set every night until midnight or later.  The aspiring percussionist goes to your school, but is not in your class.  But you are curious about him.   You’d like to find out how he’s doing in school. Perhaps there is information there that you can use to persuade his parents that he ought to knock off the drums a little earlier.  You go to the principal’s office and ask to review his records.

The principal should decline your request.  You may have a “legitimate interest” in learning more about this kid who is robbing you of sleep, but it is not a legitimate “educational” interest.  If your district has adopted TASB Policies, you should look at Policy FL (Local). It will include a definition of “legitimate educational interest.”   Most policies say that the term means that you are 1) working with that student; 2) considering disciplinary or academic action, or an IEP for the student; 3) compiling statistical data; 4) reviewing records to fulfill your professional responsibility; or 5) investigating or evaluating programs.  Checking out the Ringo Starr wannabe does not fit into any of those.

No doubt Regent Hall will argue that he is seeking student records to fulfill his professional responsibility and/or investigating programs. We shall see how Attorney General Paxton responds….if in fact he does. If he does issue an opinion, it will have to address both state law as well as FERPA.  Look for the AG’s Opinion in a future Daily Dawg!

DAWG BONE: SCHOOL OFFICIALS HAVE ACCESS TO STUDENT RECORDS ONLY IF THEY HAVE A “LEGITIMATE EDUCATIONAL INTEREST.”

 

 

Dawg Bones

Can celebrating Cinco de Mayo lead to litigation?  It did five years ago!    

It was Cinco de Mayo Day at the Live Oak High School in the Morgan Hill USD in California.  Celebrations of Hispanic heritage were planned.

Mid-morning that fateful day, a student advised Assistant Principal Rodriguez that “You may want to go out to the quad area. There might be some issues.”  Another student told Mr. Rodriguez that she was concerned about a group of students who were wearing the American flag. The student told Mr. Rodriguez that “there might be problems.”  On orders from his principal Mr. Rodriguez told the kids who were wearing the U.S. flags that they would have to either turn their shirts inside out, or go home for the day.  Mr. Rodriguez  promised the students that if they went home, it would be treated as an excused absence.  Mr. Rodriguez explained to the students that he was concerned for their safety on this particular day.

The principal, Mr. Boden, later testified that he had good reason to be worried about safety.  During his six years as principal he had personally witnessed at least 30 fights on campus.  Some of these involved gangs, and others were between Anglo and Hispanic students.  There was a police officer on campus every day.

On top of that, there had been tension on Cinco de Mayo the year before. A group of Hispanic students walked around school that day with the Mexican flag.  One of them was shouting direct threats of violence against “them white boys.”  The “white boys” responded by installing a “makeshift American flag” on one of the trees on campus and chanting “USA! USA!”.   This tension still simmered a year later.

In short, Principal Boden had good reason to be concerned about safety.  But were his concerns sufficient to justify the restriction of free speech?  Don’t American citizens have the right to say what they want, even if some people may be offended?

Of course they do. But in a school setting, administrators can suppress student speech if they can “reasonably forecast” that substantial disruption is about to occur.   The federal court in California ruled in favor of the school in this case, and the 9th Circuit affirmed that ruling on February 27, 2014. The court held that there was “evidence of nascent and escalating violence at Live Oak” that day.  All things considered, school officials acted reasonably

I listened to the recording of the oral argument of this case. The lawyer representing the Anglo kids sounds like he is from New Jersey, and he is clearly not familiar with the Hispanic heritage of the Southwest. He repeatedly referred to “Cinco de May-o” pronouncing it as if it were a sandwich spread. Even after one of the judges corrected him, he soon reverted to his erroneous ways.  I don’t think this guy could tell a burrito from a quesadilla.

I would have ruled against him just based on that.  The 9th Circuit judges were more…judicious, but they did rule against him.  The case is Dariano v. Morgan Hill USD, 767 F.3d 764 (9th Cir. 2014).

Here’s hoping you have a festive, non-violent and non-litigious celebration of Cinco de Mayo!

DAWG BONE: DON’T HIRE A NEW JERSEY LAWYER IN A CASE INVOLVING CINCO DE MAYO

 

 

Dawg Bones

Does every member of the ARD Committee have to agree or disagree with the decisions made at the meeting?

For as long as I can remember, Texas has required each member of the ARD Committee to indicate whether he or she agrees or disagrees with the decisions made at the meeting.  IEP forms used by school districts accommodated this requirement by including an “agree/disagree” check box next to the name of each of the required members of the Committee.

As of January of this year, this changed.  The Commissioner adopted new rules that dropped the “agree/disagree” requirement.  ARD procedures are spelled out at 19 T.A.C. 89.1050, and they no longer require the “agree/disagree” from each member.

But hold on.  Now there is a bill pending in the legislature (HB 3991) that would go back to the old way of doing business.

Out of curiosity I put out a question on the Council of School Attorneys’ website asking how other states handle this issue. I was informed that Oklahoma and Nebraska require each member of the IEP Team to agree or disagree. But there is no such requirement in Alabama, Connecticut, Georgia, Illinois, Louisiana, New York, Oregon or Utah.

What difference does it make?  Not a lot.  But if Texas wants to keep its procedures pared down to only what the feds require, it should not re-impose this requirement.  Federal law spells out who is supposed to be at the ARDC meeting, but does not require each individual to signify an agreement or disagreement with each decision.  The only time the IDEA speaks of each member “agreeing or disagreeing” is in connection with the report of the “group of qualified professionals” considering whether or not a child has a learning disability.  34 CFR 300.311(b).

It’s an obscure issue, but our special education laws specialize in micro-management. Thus the beat goes on. Keep an eye on HB 3991.

DAWG BONE: DON’T ORDER THOSE NEW IEP FORMS JUST YET.        

 

 

Dawg Bones

IT’S LAW DAY! SHOULD I TAKE MY LAWYER TO LUNCH?

Absolutely, you should take your lawyer to lunch! We always think that’s a good idea, but it is particularly appropriate today, being Law Day.

President Eisenhower first declared the first day of May as “Law Day” in 1957. A few years later, Congress adopted a Resolution making it so.  Thus today is a day when we celebrate and honor the role of law in the creation and maintenance of our republic.

Of course, May 1 is many other things as well. It is International Workers’ Day, celebrated in many Socialist or Communist countries.  May Day was the day when the Soviets paraded all of their military equipment on Red Square.  Do they still do that?

May is when we bust out the Maypole, a rite of spring celebrating fecundity.  “Camelot” celebrated “the lusty month of May.”

Catholic schools honor a May Queen every year—some girl who is usually very pretty and named Mary, Mary Ann, Mary Margaret, Mary Frances, Mary Ellen, Mary Pat, Mary Beth, or Mary Something.  If your name is Karen or Nancy or Susan, you can forget about it.

Speaking of Catholics, in 1955, in a move designed to counter Communism, Pope Pius XII moved the Feast of St. Joseph “the Worker” to May 1.  This could have had important personal implications for the Dawg.

That’s because on top of all these other things, May 1 is my birthday! (Thank you).  The year I was born was prior to 1955, and thus it was not yet the Feast of St. Joseph. The saint of the day back then was St. James. This is how I got my name.  It was my older brother’s idea. Being a pious little 8-year old, he told my parents that I should be named after the saint for that day.  So I became Jim Walsh.  Just think: If I had been born a few years later, I’d be Joe Walsh.  Welcome to The Hotel California!!

For those of you who don’t get that—Google it.

Anyway: Happy Law Day.

DAWG BONE: IT’S LAW DAY. DO SOMETHING NICE FOR A LAWYER.

Dawg Bones

CAN WE GO OVER THIS RETIRE/REHIRE THING AGAIN?

There are a few things in school law that I try to avoid.  PEIMS is at the top of the list, but close behind is “retire/rehire.”  Fortunately, there are people in my law firm who understand this stuff well.  Shellie Hoffman Crow recently wrote a summary of the law pertaining to retire/rehire in Time Out, the newsletter we send to our clients.

The main thing to keep in mind is that there are different rules that apply depending on when the person retired.  The critical date is January 1, 2011, which is easy to remember (1-1-11).

Also, there may be “surcharges” that the employing district is responsible for.  Here, the critical date is September 1, 2005.  If the employee retired after that date, surcharges are likely.  There are exceptions for substitutes and those employed less than half time.

TRS requires a monthly certified statement of employment and there are serious (i.e., criminal) consequences for knowingly failing to file this report. Yikes!

In making decisions about how to treat retire/rehire people, you always have to be sure that your decisions will not be viewed as discriminating against those over 40, and you can expect that most (all?) of your retire/rehires are going to be in that cohort.

Finally, how you handle insurance can be complicated.

That’s all I know. If you have questions about this one, please don’t call me. Call Shellie.

DAWG BONE: RETIRE/REHIRE LOOKS LIKE IT’S HERE TO STAY.

Dawg Bones

REPORTING POSSIBLE CHILD ABUSE

I was reporting possible child abuse, as I’m required to do.  For this, I get sued?????

A director of pupil services in Ohio is facing possible personal liability for reporting that a parent was possibly abusing his child. The 6th Circuit held that a reasonable juror could conclude that the report was an act of illegal retaliation.  Thus the court refused to grant the director qualified immunity. The case will proceed to a trial, and the outcome there will depend on what the jury believes to be true.

In 2008, the 6th Circuit held that a false report of child abuse could be considered an act of retaliation against a parent.  Jenkins v. Rock Hill Local School District, 513 F.3d 580.  In the present case, the same court tells us that the truth or falsity of the report is not the crucial issue.  The crucial issue is the motivation of the person who made the report.  Therefore, “a report of child abuse—even if it is not materially false and there is evidence in the record that could support a ‘reasonable basis’ to suspect child abuse—is actionable if the reporter made the report ‘at least in part’ for retaliatory motives.”

This case is in its early stages, and the court did not sort out the many disputed facts.  In fact, because of the procedural posture of the case—a Motion to Dismiss by the director—the court was required to read the complaint in the light most favorable to the parent.  With that in mind, here is what the court cited as evidence that the proverbial “reasonable juror” might cite in finding that the director was improperly motivated:

  1. The report of abuse came just three weeks after the State Department of Education notified the director that the parent had filed a complaint against the district;
  2. Personal animus. A couple of emails the director sent to staff described the parent as having a “long time assumption that what he wants he gets,” and that he was perhaps trying to “force us to spoon feed him information”;
  3. The report of child abuse “embellished or entirely fabricated other allegations, including those that most clearly suggested sexual abuse.”  The court also noted that the director added irrelevant details, describing the parent as “unkempt” “creepy” “verbally aggressive.”

Much of the problem here stemmed from the fact that the director did not personally observe any symptoms of abuse. She reported what she believed the teachers told her. But then the teachers denied telling her many of the things she reported.  This is where the “embellishment” claim comes from.  This, combined with the emails that suggested that this parent needed to be taken down a peg, were enough for the court to allow the case to proceed to a factual determination.

Educators are in a tough position.  You must report suspected child abuse or neglect.  Sometimes, this report will target a parent with whom the educator has had conflict. This opens the door to allegations that the report “at least in part” was improperly motivated.

So take your time.  Make sure you have your facts right.  Check your motives.  Be sure that any report of child abuse is just that—a report of possible child abuse, and not a backhand way of striking back at a parent.

The case is Wenk v. O’Reilly, decided by the 6th Circuit Court of Appeals on April 15, 2015.  It can be found at 115 LRP 16032.

DAWG BONE: MAKE SURE YOUR REPORTS OF POSSIBLE CHILD ABUSE ARE ABOUT CHILD ABUSE, NOT SOME OTHER AGENDA.

Dawg Bones

SAME-SEX MARRIAGE ARGUMENTS HEARD AT SUPREME COURT TODAY!

This is the day when the Supreme Court will hear the arguments about the constitutionality of marriage between people of the same sex.  Due to the high level of interest in this issue, the Court has promised to make the audio and the written transcript of the arguments available by 1:00 pm, Central time.  The arguments will run from 9:00 to 11:30.  Go to www.supremecourt.gov for more information.

The pundits and court watchers think they have this one figured out. They expect at least five members to hold that the U.S. Constitution requires states to recognize same sex marriages.  Of course we won’t know if they are right based on the arguments today. The Court will take its time on this one, probably issuing a decision in June.

It’s interesting to observe how major social change occurs in our open and free society.  As a general rule, major social change tends to start with litigation long before it goes to legislation.  Consider desegregation.  Cases alleging that racial segregation was unconstitutional were bubbling through the judicial system in the late 1940s and early 1950s.  Then in 1954, the Supreme Court issued its landmark Brown v. Board of Education decision.

Litigation happens before legislation because litigation only requires one determined plaintiff.  Legislation requires a majority.  So it is not surprising to see that it takes awhile before a majority is ready to enact major social change into law.  The ruling in Brown was greeted with resistance, delay, and outright defiance.  It took another ten years before public opinion about racial segregation reached the tipping point and Congress was courageous enough to enact the Civil Rights Act of 1964.

Our special education laws provide another example of this.  Litigation by determined parents, seeking public education for their children began in the late 1960s.  By 1975, Congress was ready to enact the law that we now call IDEA.

The same thing has happened with gay marriage.  Long before public opinion on this issue shifted, determined plaintiffs began filing lawsuits challenging state law bans on same-sex marriage.  Now that litigation has reached the country’s highest court, which must definitively decide the issue.

So this is a historic day.  I don’t know about you, but I look forward to listening to the arguments of the lawyers and the questions from the justices.

DAWG BONE:  GET A GROUP TOGETHER IN YOUR SCHOOL TO LISTEN TO THESE ARGUMENTS. BRING POPCORN.

 

 

Dawg Bones

YOGA IN PUBLIC SCHOOLS

Our principal is demonstrating “Downward Facing Dog.” Is this OK in a public school? Isn’t yoga a religious practice?

You won’t be surprised to hear that it happened in California.  The Encinitas Union School District, which serves only K-6 students, implemented an Ashtanga Yoga program as a component of its P.E. offerings.  The program was funded in part by the KP Jois Foundation, whose mission is to “establish and teach Ashtanga yoga in the community.”

The district hired a yoga instructor who was certified by a yoga institute in India.  The classes taught children a series of poses, some Sanskrit words. The teacher also read “Myth of the Asanas” which contains numerous references to Hindu deities.  However, being in a public school, she omitted the parts about the deities.  She did, however, instruct the children to use the word “Namaste,” which she interpreted to mean “respect.”

After using yoga at one school in 2011-12, the district expanded the program to all nine of its schools the following year.  This was again funded, in part, by a grant from the Jois Foundation. The proposal called for a “partnership” between the Foundation and the school district “to deliver a world class mind/body wellness program” and to provide “students, staff and families access to Ashtanga Yoga on a regular basis throughout the year.”

Not everyone in the community greeted this by chanting “Om” while in the lotus position.   Stephen and Jennifer Sedlock sued the district, its superintendent and all five school board members. The suit alleged that the district was promoting the Hindu religion, in violation of the U.S. and California constitutions.

The California Court of Appeals ruled in favor of the school district.  In its critical ruling, the court observed that “it is clear that while yoga may be practiced for religious reasons, it cannot be said to be inherently religious or overtly sectarian.”

Here are some of the factors that persuaded the court to rule for the school district:

  1. Although the Foundation provided some money, the district maintained complete control over the curriculum, and made sure that it was stripped of anything that even hinted at, or sounded religious. For example, the “lotus position” was renamed “criss-cross applesauce.” The district even dropped the Sanskrit.
  2. Yoga may have religious roots, but that does not mean that its current practice in the district is religious.
  3. The court noted evidence in the record showing that “contemporary yoga is commonly practiced in the United States for reasons that are entirely distinct from religious ideology.” Surveys showed that people practiced yoga primarily for 1) increased flexibility; 2) stress relief; and 3) improvement in physical health.

Yoga is very popular.  It makes sense that some schools might want to teach this to kids, as it is a physical activity that can be practiced for a lifetime.  So we are wondering: is anyone in Texas doing this?  Let me know at jwalsh@wabsa.com.

The case is Sedlock v. Baird, decided by the Court of Appeals, 4th Appellate District, in California on April 3, 2015.

DAWG BONE: IF YOU OFFER YOGA, TAKE OUT ANY RELIGIOUS CONTENT.  THEN ASSUME “CRISS-CROSS APPLESAUCE!”