All posts by Jim Walsh

Dawg Bones

BOYS ON THIS SIDE OF THE CAFETERIA.  GIRLS ON THE OTHER SIDE.  IS THAT OK?

Dear Dawg:  Life is not simple anymore, is it, Dawg?  Of all the ridiculous complaints I have ever had to deal with, I think this one tops them all.  We have a professional busybody in our district who now insists that we are out of compliance with federal law because we separate the boys and the girls in the cafeteria.  You know, we just think it works better this way, and we’ve been doing it for close to a million years.  We don’t know of anyone who has had to undergo extensive therapy later in life because of the trauma.  We are all aware of Title IX and I can assure you that we have a world class softball facility.  But carrying this political correctness into the school cafeteria is a bit much. Will you tell me what law I can cite to tell Ms. Busybody to bother someone else?  MIFFED.

DEAR MIFFED:  Nope. Can’t do it.  Ms. Busybody has a point.  See the Guidance issued by the Department of Agriculture:

http://www.fns.usda.gov/sites/default/files/cn/SP31_CACFP12_SFSP14-2015os.pdf.

The Guidance, issued very recently (March 20, 2015) tells us that “school food authorities” that participate in the Child Nutrition Programs “are not permitted to separate children on any protected basis during the service of Program meals or snacks.”  The Guidance does not tell us what “separate” means. Obviously, if you were to allow one gender to have lunch in a nice air conditioned cafeteria while the other gender suffered in an overheated gymnasium that would be a kind of “separation” that would not be OK. If they are all in the same cafeteria, but in separate Boys and Girls tables, we are not sure if that would be OK.  But probably the humorless bureaucrats at the Department of Agriculture would find fault with that arrangement. After all, the key here is “protected” categories—race, religion, sex.  So the Department would probably look at it this way: If it would not be OK to separate kids by race, then it is not OK to classify and separate them by gender.

We cannot imagine the Lunchroom Nazi instructing the Hispanic kids to sit on one side of the cafeteria while the others sit elsewhere.  We instinctively know that that would be wrong.  Or how about this:  “All you straight kids sit over here; the gays are on that side of the cafeteria.”  No—for many reasons, we know we would not want someone to do it that way. How about: “Christians over here; Jews, Muslims, Buddhists, Hindus, atheists of all stripes, Wiccans and members of the Church of the Flying Spaghetti Monster over here.”  Nope. That would not be a good idea either.

Classifying and separating kids by gender offends most people less than any of these examples, and probably offends many people not in the least.  But in the cold hearted eyes of the Department of Agriculture, it’s all the same thing.

We once bumped into a short book offering 50 ways to divide kids into two groups without ever using the words “boys and girls.”  So if you want to divide the kids into two groups, put your creativity to work.

DAWG BONE:  GENDER SEPARATION IS NOT OK.  EVEN AT LUNCH.

 

 

Dawg Bones

DO YOU KNOW WHAT A “GARRITY WARNING” IS?

You supervise an employee in your school district who is accused of wrongdoing.  If what you have heard turns out to be true, the employee has not only violated school policy—he has committed a crime as well.  The employee could be fired, and could face criminal prosecution.   You are responsible for conducting an investigation into this matter, including an interview of the employee.

It would be a real good idea for you to contact your school attorney and inquire about Garrity v. New Jersey.  This case, cited as 385 U.S. 493, was decided by the U.S. Supreme Court in 1967.  The case established the general legal principle that a public employee can invoke the 5th Amendment right to refuse to incriminate himself when his employer investigates wrongdoing that might lead to criminal prosecution.  Thus, a “Garrity Warning” is due. The warning would advise the employee of the distinction between criminal prosecution vs. administrative proceedings leading to job termination.  The 5th Amendment applies to the criminal aspect only.  If you refuse to answer your employer’s legitimate questions, you might lose your job. But your silence should not be used against you in a criminal case.

Call your attorney about this.  The specific wording of a Garrity Warning is important, and may vary depending on the circumstances. But if you start that conversation by telling your school lawyer that you need help with a “Garrity Warning” I can guarantee that your lawyer will be impressed.

DAWG BONE: H.R. DIRECTORS NEED TO ADD “GARRITY WARNING” TO THEIR VOCABULARY.

 

 

Dawg Bones

PUTTING THE D IN ARD

It’s an Admission, Review and Dismissal Committee.  The title tells you three of the primary functions of the ARDC.  It ADMITS students to the special education program by determining that they are eligible.  It REVIEWS the student’s progress at least once a year.  And it DISMISSES students from special education.

A recent court case from Maine focuses on the dismissal of a student.  The court’s opinion never uses the term “educational need” but that was the main reason that Jane Doe was dismissed from the special education program after seven years of service for her learning disability.  At age 15, Jane was receiving A’s in all of her classes.  Her strong performance in school was corroborated by state-mandated standardized tests. Jane met or exceeded grade-level expectations in both math and reading.

In December, 2012, the district completed Jane’s three-year reevaluation, which showed that she achieved average or higher scores on a battery of tests with only one exception. She scored “low average” on the Rapid Naming Composite portion of the Comprehensive Test of Phonological Processing.

Based on that comprehensive evaluation, along with the classroom grades and standardized test scores, the IEP Team determined that Jane was no longer eligible.  The parents objected, hired two educational experts to test Jane, and took the matter to a due process hearing.

The hearing officer ruled for the school district, and the federal district court affirmed.  The lawyers tried to drag the court into the murky waters of “severe discrepancy” and “standard deviation” and other such arcana. The court dodged it:

As measured by the requirements of the federal regulations, the IEP Team reached this conclusion [that Jane no longer qualified] based on indicia showing that Jane was achieving adequately for her age and meeting State-approved guidelines—Jane’s grades, standardized test scores, and teacher feedback.

Jane’s lawyers tried to focus the court on Jane’s reading fluency scores, and argued that the hearing officer had “veered off course into a consideration of Jane’s academic grades…and scores on Maine’s standardized tests that do not measure reading fluency at all.”

Looking at grades and test scores is hardly “veering off course.” Special education services are designed to assist students with disabilities to achieve at grade level, or as close to it as possible.  Grades and test scores tell us whether the student has achieved that or not.   The evaluation of a student with a learning disability, under both state and federal law, requires a finding that “the child does not achieve adequately for the child’s age or to meet State-approved grade-level standards.”  That makes it pretty clear that achieving at grade level is an important goal.

If the child achieves at grade level, without the provision of special education services, the child does not qualify as a student with a specific learning disability.  It’s really that simple.

The case is Doe. v. Cape Elizabeth School Department, decided by the federal district court in Maine on December 29, 2014. The case is at 64 IDELR 272.

DAWG BONE: YOU ARE NOT A STUDENT WITH A LEARNING DISABILITY UNLESS YOU ARE UNDERACHIEVING. 

 

 

Dawg Bones

THE BOY SCOUTS GOT IN FOR FREE.  HOW ABOUT US?

The Child Evangelism Fellowship of Ohio (CEF) has accused the Cleveland Metropolitan School District of discriminating against it because the district insisted on charging the CEF for the use of district facilities.  The CEF wanted to operate a Good News Club for students after school. The district charged its customary rate of $69.50/hour.

But then the CEF found out that the Boy Scouts were using school facilities for free.  VIEWPOINT DISCRIMINATION!!

The CEF sought an injunction to force their way into school facilities. The federal district court denied the injunction, and the Circuit Court affirmed that decision.

Can school districts pick and choose what groups can use its facilities? Not entirely. The district does have to play fair.  If it makes its facilities available at all, courts are likely to conclude that the district has created a “limited public forum.”  If that be the case, the district “may restrict speech….as long as the restrictions ‘do not discriminate against speech on the basis of viewpoint’ and are ‘reasonable in light of the purpose served by the forum.’”  Miller v. City of Cincinnati, 622 F.3d 524, 535 (6th Cir. 2010) (quoting Good News Club v. Milford Central School, 533 U.S. 98, 106-07 (2001).

So “viewpoint discrimination” is a legitimate complaint…if the facts are right.  The problem for the CEF in this case was that the facts did not support its argument.  True, the Boy Scouts were using school facilities without a cash payment. But the district accepted “in-kind” payment from the Scouts that it deemed worthwhile.  In like fashion, the district permitted a Christian church to hold its services in a school building in exchange for capital improvements to the building that the church provided.

The court’s decision was not unanimous. One judge dissented by noting that the Boy Scouts so-called in-kind payment did not really benefit the school district. The Scouts were given credit for the supplies, uniforms, camping costs and books that it provided to the participants.  These are costs that would normally be borne by the parents—not the district. As the dissenting judge points out, “The District does not explain how payment of these program costs compensates the District for its maintenance and utility expenses—because it does not.”

Good point. So perhaps we have not heard the last of this case.

The case provides a good opportunity for district administrators to review their policies and practices regarding community use of facilities.  Take a look at your Policy GKD and make sure that your practices as well as policies can withstand an accusation of viewpoint discrimination.

The case is Child Evangelism Fellowship of Ohio, Inc. v. Cleveland Metropolitan School District, decided by the 6th Circuit Court of Appeals on March 19, 2015.

DAWG BONE:  CHECK OUT POLICY GKD. THEN LOOK AT YOUR ACTUAL PRACTICES.

 

 

Dawg Bones

WHAT IS THE DEADLINE FOR THE THREE-YEAR RE-EVALUATION?

R.C. is a student in the District of Columbia.  In April, 2010, the school district completed an evaluation of R.C. to consider his eligibility for special education services.  Ten months later, on February 8, 2011, his IEP Team met and determined that he was eligible for services.  The court case does not tell us why there was such a long delay, but the dates are relevant because the parent later complained that the student’s three-year reevaluation was not completed on time.

We all know that it is a “three-year” reevaluation, but when does the three year clock start to tick? Is it from the date of the prior evaluation (April, 2010) or the date of eligibility (February, 2011)?

The court concluded that the timeline runs from the date of the previous evaluation.  Thus, if a student’s FIE (Full Individual Evaluation) is completed today, the three-year re-eval would need to be completed by April 20, 2018.

In R.C.’s case, the district missed the deadline.  The court held that this was a procedural error, but found no evidence that the error caused any harm to the parent or the student.   In fact, the court pointed out that “plaintiff has not alleged, much less proven, that R.C. suffered any educational harm from this violation.”

No harm, no foul. The case is Cooper v. District of Columbia, decided by the federal district court for the District of Columbia on December 30, 2014.  We found it at 64 IDELR 271.

DAWG BONE: THREE-YEAR RE-EVAL RUNS FROM DATE OF PREVIOUS EVALUATION. 

 

 

Dawg Bones

COACH STRONG.  COACH SMART.  COACH GOODLOOKING?

We’re just wondering what’s going on at the University of Texas and its coaches.  First they hire a football coach named Strong. Then they hire a basketball coach named Smart.  We’re guessing that whenever Augie Garrido steps down as baseball coach they will be looking for Coach Goodlooking.

Of course all coaches at HookEm U could be described as Coach Rich.  Charlie Strong is the highest paid state employee in Texas.  And Rick Barnes just got paid $1.75 million for getting fired.

It just goes to show that we value athletics a lot in this country.  I once heard a talk by motivational speaker Earl Nightingale in which he talked about how much money a person can expect to make in various occupations. He said it was all based on three factors: 1) how much people want or need the service or product you provide; 2) how well you do it; and 3) how difficult it would be to find someone else to do what you do.

Nightingale said that this analysis applies to every job in every industry.  There is no moral component to the analysis. Drug dealers make a boatload of money because 1) drugs are in great demand; 2) some of them do it very well; and 3) they are hard to replace, especially if they deal with dangerous situations.

Coaches of college athletics in the big revenue sports (football, men’s basketball) make a lot of money because we love those sports so much that a lot of money is there to be had.  And some of them (Mack Brown, Coach K) do it very well.  The pool of talent able to perform at that level is pretty small.  So all three factors favor big bucks.

So think about public school teachers.  Why are they not paid better?

Factor #1: Of course we say that we value our kids’ education enormously, but the proof is in the pudding.  Some of our politicians and business leaders seem to be actively looking for ways to reduce funding.

Factor #2:  The best teacher in the state gets paid about the same as the worst, if their degrees and years of experience are the same.  We have not yet figured out a way to better compensate the teachers who are superstars.

Factor #3:  One teacher retires, and another one comes along.  It’s not hard to find another teacher. It might be hard to find another really good teacher, but the truth is, that’s not what the public demands. We can always find someone who can stand in front of the class.

So if the Nightingale analysis is correct—and I think it is—teachers will probably never be as well compensated as professional athletes or movie stars.  Which makes it all the more important that we find non-monetary ways to make the job of teaching fulfilling and satisfying.

DAWG BONES: EARL NIGHTINGALE’S THREE-FACTOR ANALYSIS LOOKS ACCURATE TO ME. WHAT DO YOU THINK?

 

Dawg Bones

DOES THE SCHOOL HAVE TO TRANSPORT A CHILD HOME FROM A PRIVATE, AFTER SCHOOL DAY CARE PROGRAM?

It would have been helpful if the court in New York had ruled on the substantive question presented. The issue comes up fairly often.  The case involved a student with autism and an intellectual disability who attended public school in Bay Shore, New York.  At the end of the school day, on two days of the week, the school district provided special transportation to deliver the boy to an after school program he attended.  The boy’s grandmother usually picked him up from the after school program. But she died.  So the dad asked the school to provide the transportation and the school said no.  The dad sued.

The district court in New York tossed the case out. The parent should have requested a special education due process hearing.  He did not do that. He filed suit in court and the court held that this was premature.  In legal parlance, the father “failed to exhaust his administrative remedies.”  Thus the court had no jurisdiction—end of story.

If the court had ruled on the legal issue, I’m guessing that it would have ruled for the school district.  The district was not paying for the after school program, and had not identified it as something that the student needed in order to receive FAPE (Free Appropriate Public Education). The school district provided bus service to the after school program because it would otherwise be transporting the student home.  In that sense, it owed the student transportation at the end of the school day.  But this after school program was chosen by the father, not recommended or paid for by the school.  Thus I would guess that the court would have said that the school had fulfilled its transportation duty by delivering the boy to the after school program.

Cases like this produce sympathy.  No doubt this after school program is beneficial to the student, and I suspect that the father would not go to the trouble of filing a federal lawsuit over the matter if a simpler solution were readily available.  Perhaps he is a single dad, and thus the death of the grandmother puts him in a bind.  But when we apply our cold blooded legal analysis here, we see that this is the type of dilemma that millions of families face, whether there is a disability involved or not.   There is no disability-related need for this transportation service.  The student is not being treated less favorably than other kids.  So I’m guessing the school would have prevailed in this one “on the merits” as the lawyers say.

The case is Licata v. Salmon, decided by the Eastern District of New York on January 12, 2015. We found it on SpecialEdConnection at 64 IDELR 263.

DAWG BONE: “SPECIAL TRANSPORTATION” HAS TO HAVE SOMETHING TO DO WITH THE STUDENT’S DISABILITY.

 

 

Dawg Bones

HOW THE BOARD CAN OVERRULE THE HEARING EXAMINER’S RECOMMENDATION

Yesterday we talked about Judson ISD v. Ruiz, the case where the district terminated the employment of a counselor for failing to report suspected abuse or neglect.  One of the important aspects of that case was the school board’s decision to overrule the recommendation of the hearing examiner.  That is not easily done, but in this case it was done and done properly according to the Court of Appeals.

After hearing the evidence, the hearing examiner concluded that Ms. Ruiz violated board policy by failing to report about the inappropriate text messages her daughter, a student in the district, had received from a district employee.  Despite that conclusion, the hearing examiner recommended that Ms. Ruiz not lose her job.  In the view of the hearing examiner, this violation of board policy did not amount to “good cause” sufficient to fire the employee.  This was largely based on the fact that another Judson employee, who also knew about the text messages and failed to report them, was not terminated.  The hearing officer concluded that the difference in the way the two employees were treated was “so vastly different and without reasonable grounds or adequate consideration, that it rises to the level of being arbitrary and capricious.”  The hearing examiner characterized this as a “finding of fact.”

The school board thought it was more accurately described as a “conclusion of law.”  The distinction is important.  Determining that two employees have been treated differently is a “finding of fact.” But drawing the inference that this disparity “rises to the level of being arbitrary and capricious” is a conclusion of law that ultimately decides the case.  Thus the board asserted its authority to change a “conclusion of law.”  After considering the case as required under the Education Code, the board inserted a “not” into the crucial ruling.  Thus it read that the difference in the treatment of the two employees was “not” so vastly different as to be arbitrary and capricious.  After all, the Education Code says that the board can reject or change a conclusion of law, “including a determination regarding good cause for…termination.”  T.E.C. 21.259(b)(1).

It’s almost impossible for a school board to override the “findings of fact” made by the hearing examiner. But changes to the “conclusions of law” can be done if the board follows the procedure laid out in the Education Code.  That’s what happened here, and the board’s decision was ultimately affirmed by both the Commissioner and the Court of Civil Appeals.  The case is Judson ISD v. Ruiz decided on March 31, 2015.

DAWG BONE: CHANGING A “CONCLUSION OF LAW” CAN BE DONE, BUT PROCEED CAREFULLY AND WITH LEGAL ADVICE.

 

 

 

Dawg Bones

CAN A COUNSELOR BE FIRED FOR NOT REPORTING POSSIBLE CHILD ABUSE? WHAT IF THE CHILD IS HER OWN?

Judson ISD proposed the termination of Maria Ruiz, a counselor, based on Ms. Ruiz’s failure to report suspected child abuse.

The independent hearing examiner assigned to hear Ms. Ruiz’s case, recommended that she not be fired.  But the board fired her anyway.

So Ms. Ruiz appealed to the Commissioner. The Commissioner affirmed the board’s decision to terminate Mr. Ruiz’s employment.

So Ms. Ruiz took her appeal to state court in Bexar County.  There, she won.  The judge ordered that she be reinstated with back pay and benefits.

So the district appealed to the 4th Court of Appeals.  That court has now ruled in favor of the district.

What makes the case particularly interesting is that the child in question was Ms. Ruiz’s daughter, a freshman at Judson High school.  The suspected abuser, Carlos Reyes, was the girl’s mariachi instructor, who was also a paraprofessional and substitute teacher employed by the district.  When Ms. Ruiz came across sexually explicit and inappropriate text messages between her daughter and Mr. Reyes, she and her husband immediately met with Mr. Reyes and his wife and insisted that there be no further communication with their daughter, unless it was specifically about music.

That is a step that most parents would probably take.  But the problem for Ms. Ruiz was that she was not just a parent in this situation. She was also a school employee, subject to policies and laws pertaining to the reporting of suspected abuse. She did not report Mr. Reyes’s conduct to school officials, the police or the child abuse authorities.  About six weeks later, another counselor found out about these text messages, and she reported it to school administrators. They reported to Child Protective Services, and investigations ensued.  Mr. Reyes promptly resigned. Ms. Ruiz did not.

The initial hearing examiner in this case concluded that Ms. Ruiz “did not believe abuse or neglect had occurred” and therefore “did not believe it necessary to contact the police regarding the incident.” But as this case points out, that subjective belief about whether or not “abuse or neglect” has occurred is not the whole story.  The standard is that we must report if we have “cause to believe” that “abuse or neglect has occurred or may occur.” The court’s opinion emphasizes the concern about future abuse: “Thus a finding that Ruiz did not subjectively believe abuse had occurred in the past does not contradict and is not inconsistent with Ruiz having had cause to believe abuse may occur in the future.”

The fact that the child in this case was the counselor’s daughter does not figure in the decision. Child abuse is child abuse, regardless of whose child it is.  The law requires people who have “cause to believe” that abuse or neglect has occurred to do so.  This mandate applies to all of us, but for teachers and counselors the stakes are higher.  For them, the failure to report suspected abuse is a violation of state law, but also, grounds for termination of employment.

The case is Judson ISD v. Ruiz, decided by the Texas Court of Civil Appeals in San Antonio on March 31, 2015.  We will have more to say about this case tomorrow.

DAWG BONE: FAILURE TO REPORT SUSPECTED ABUSE OR NEGLECT CAN COST YOUR JOB.

 

 

Dawg Bones

TINKER SUPPORTS BELL?  WHO KNEW?

Mary Beth Tinker has filed an amicus curiae (friend of the court) brief in Taylor Bell’s case now pending before the 5th Circuit Court of Appeals. This is the case in which Mr. Bell wrote and recorded a rap (Facebook and YouTube) accusing two coaches at his high school of sexual improprieties with students.  Despite the pervasive vulgarity of the rap and its suggestions of violence against the coaches, the 5th Circuit panel that heard the case concluded that the rap was entitled to constitutional protection as an expression of free speech.  The entire en banc Circuit Court will review that decision on May 12th.

Now, free speech icon Mary Beth Tinker has weighed in on the case.  You may recall Ms. Tinker as the former 8th grader who started the whole fuss about students and the First Amendment by wearing a black armband to school in support of a Christmas truce in Vietnam.  That was in 1965.  Fifty years later Ms. Tinker is still rabble rousing.  In 2013-14 she traveled 25,000 miles by bus and spoke to over 20,000 students on the “Tinker Tour.” The purpose was to provide a “real life civics lesson” to schools and communities.

I wonder if the Tinker Tour stopped in Itawamba, Mississippi, home of Taylor Bell.

The amicus brief was authored by Allyson Ho, Counsel of Record for Ms. Tinker, along with lawyers from the Liberty Institute. The Liberty Institute is the Plano-based advocacy group that has promoted the Texas Religious Freedom Restoration Act and supported the plaintiffs in the endless “candy cane” wars in Plano.

The brief refers to the “disturbing facts of this case.”  It describes the rap as “filled with both vulgar language and violent imagery.”  The rap at issue in the case is characterized as “odious.”  The brief carefully avoids encouraging the Court to rule in favor of Mr. Bell.  Its primary emphasis is to encourage the Court not to do anything to suppress student free speech that is politically or religiously motivated.  The brief urges the Court to make “a narrow ruling on grounds entirely separate and apart from Tinker to avoid inadvertently undermining any form of legitimate student speech, particularly religious and political speech.”

Lots of people are interested in this case.  It presents the 5th Circuit a wonderful opportunity to address the continuing relevance of the on campus vs. off campus distinction in the era of social media.  Mr. Bell won the first round based in part on the fact that the rap was supposedly never played at the school.  After all, cell phones were prohibited by school policy. You know how well that works.

The Dawg will continue to monitor this case. Stay tuned.

DAWG BONE: SHOWDOWN AT THE 5TH CIRCUIT ON MAY 12TH.  DON’T MISS IT.