All posts by Jim Walsh

Dawg Bones

MARCH MADNESS, OFFICE POOLS, & TITLE IX

Dear Dawg: There is an OFFICE POOL going on here, involving the NCAA tournament.  I have it on good authority that money is being wagered! Isn’t this illegal?  Especially on public school property????  I’M NOT IN ON IT, BUT I HEAR A LOT OF TALK ABOUT KENTUCKY.

DEAR I’M NOT IN: Well, maybe it is illegal, but the Dawg has never seen local prosecutors get too excited about March Madness pools.  Maybe that’s because they are all in one!

We think your bigger problem is if the Office for Civil Rights finds out that your office pool is only for the men’s tournament, and does not include one of equal value for the women.  Those humorless bureaucrats at OCR will bust you for that quicker than you can say “Title IX!”  So either do two pools or none at all.

DAWG BONE: LOOK FOR A “DEAR COLLEAGUE” LETTER ON THIS SOON.

 

Dawg Bones

WHAT’S GOING TO HAPPEN WITH INTERACTIVE EDUCATIONAL GAMES IN THE CLASSROOM?

There is a flap going on in some school districts over Mission US: Flight to Freedom. This is an award winning digital learning game that calls for middle school kids to assume the role of Lucy King, a 14-year old African American held in slavery in pre-Civil War America.  Not surprisingly, some people think the use of games like this for educational purposes is a great idea; while others think the content of this game, and the emotions it will stir up are inappropriate in the school setting.

Reading about this reminded me of a long ago case from Texas, Kingsville ISD v. Cooper, 611 F.2d 1109 (5th Cir. 1980).  Janet Cooper, a History teacher in the district, had her contract nonrenewed by the school board, despite the fact that the school administrators had  recommended her for renewal.  What’s this about?   Ms. Cooper alleged that she was being punished for the exercise of free speech rights in the classroom. Earlier in the year, Ms. Cooper employed a role-playing simulation game, designed to teach students what life was like in rural America during the post Civil War Reconstruction era.   Some folks in the community did not like this, and Ms. Cooper was talked to by the principal and the HR director. But no one ever flat out told her not to use this technique. So she continued. The 5th Circuit was convinced that Ms. Cooper lost her job because of her proper exercise of free speech rights in the classroom.

That case was decided by the 5th Circuit in 1980, but the events occurred all the way back in 1971.  Much has happened since then, both with regard to classroom technology, and the law.  Ms. Cooper might not win her case today.  Courts have curtailed the boundaries of “academic freedom” considerably, especially in the K-12 area.   But it is interesting to see the evolution of educational role-playing from whatever Ms. Cooper did in 1971 to the digital, interactive world of today.

Whatever your district decides to do about games like this, remember that parents in Texas have the right to “opt out” of any school activity that “conflicts with the parent’s religious or moral beliefs.”  T.E.C. 26.010(a).  This is a temporary opt out.  It must be requested in writing. And it is not available to avoid taking a test.

DAWG BONE:  WE WILL SEE SOME INTERESTING CASES INVOLVING CONTROVERSIAL GAMING METHODS.

 

 

Dawg Bones

DR. BIGBRAIN WANTS TO DO A CLASSROOM OBSERVATION. WHAT DO WE DO?

Mr. Jones has exercised his rights under IDEA and is in the process of obtaining an IEE (Independent Educational Evaluation).  The IEE is to be done by eminent and esteemed psychologist, Dr. Bigbrain.  How eminent and esteemed is this guy? Well….he has many letters after his name.  His glasses frequently slip down on his nose so that he can look over them in a very scholarly manner.  He has a neatly trimmed Van Dyke.  There are elbow patches on his tweed jacket. Rumor has it that he smokes a pipe.  He uses big words.  The man is uber-qualified.

And Bigbrain says that his evaluation must include a classroom observation of the child.  Can the school refuse this request?

Yesterday we talked about a federal court case and an OSEP letter about classroom observations by parents and their attorneys.  Both the case and the OSEP letter tell us that IDEA does not give parents the right to demand that they or their attorneys observe in the classroom.

However, observation by a qualified evaluator conducting an IEE should be looked at differently.  Both the court case and the OSEP letter addressed this.  In fact, in the court case, the original hearing officer ordered the district to allow the parents’ independent evaluator to conduct an observation in the classroom. The hearing officer concluded that barring a qualified evaluator from the classroom would interfere with the parents’ right to obtain an IEE.  The school did not challenge that ruling on appeal.  The case is T.M. v. District of Columbia, decided by the federal district court in Washington, D.C., on December 3, 2014.

OSEP sees it the same way.  The OSEP Letter to Savit (February 10, 2014) notes that an observation by a qualified evaluator pursuant to an IEE is not the same as an observation by a parent or attorney: “Therefore, it would be inconsistent with the IDEA for a public agency to have a policy giving third party evaluators only a two hour observation window, because such a limitation may restrict the scope of the IEE and prevent an independent evaluator from fulfilling his or her purpose, unless the LEA also limits its evaluators to a two hour observation period.”

Why the difference? Because IEEs done at public expense are supposed to be conducted under the “same criteria” that the school uses in its own evaluations of students. If the school would include a classroom observation in its evaluation, it must permit the parents to do the same in an IEE.  Likewise, OSEP says the school can limit the IEE observation to two hours only if it also limits itself to that timeframe.

DAWG BONE: REQUESTS FOR CLASSROOM OBSERVATION PRESENT LEGAL ISSUES—RESPOND THOUGHTFULLY. 

 

 

Dawg Bones

CAN THE SCHOOL BAR THE PARENTS FROM CLASSROOM OBSERVATION?

According to a federal court in the District of Columbia, IDEA does not guarantee parents a right of observation of their child in the classroom. Nor does it guarantee that attorneys representing the parent can observe.  This arose in T.M. v. District of Columbia, a case decided on December 3, 2014, and reported by SpecialEdConnection at 64 IDELR 197.

The parents’ argument in this case was based on the notion that IDEA guarantees parents the right to participate in the IEP process in a meaningful way. It also gives parents the right to an IEE (Independent Education Evaluation) if they disagree with an evaluation done by the school.  But the court noted that “the statute is silent on the issue of parental observations.”  The opinion goes on to say that “In the absence of any authority to the contrary, IDEA does not guarantee parents the right to observe on request.  Thus, [the school district’s] decision not to allow T.M.’s parents and attorney to observe when requested was not a denial of FAPE.”

This court decision is consistent with OSEP’s view on the matter.  In Letter to Savit, (February 10, 2014) OSEP says “the IDEA and its implementing regulations do not provide a general entitlement for third parties, including attorneys and educational advocates, to observe children in their current classrooms or proposed educational placements.”

Keep in mind that just because parents do not have the legal right under IDEA to observe in the classroom does not mean that schools must prohibit them from doing so. Most schools permit classroom observation, subject to reasonable rules about frequency, duration and confidentiality. The key is to be consistent and fair about this, with a set of rules that apply to all parents.

What if the parent is obtaining an IEE, and the evaluator wants to do a classroom observation? We will address that issue tomorrow, so check in with the Dawg again then!

DAWG BONE:  IDEA DOES NOT GUARANTEE PARENTS OR LAWYERS THE RIGHT TO OBSERVE IN THE CLASSROOM.

 

 

Dawg Bones

CAN THE SUPERINTENDENT REASSIGN THE PRINCIPAL TO AN ASSISTANT PRINCIPAL JOB?

We all know that superintendents generally enjoy a lot of flexibility in assigning and reassigning staff.  That’s usually part of the superintendent’s job description.  Professional contracts customarily include the statement that the employee understands that he or she is “subject to assignment or reassignment.” But are there any limits on that authority?

This is being litigated in the case of Jenkins v. Crosby ISD. This case began when the superintendent moved a principal to an assistant principal position.  Ms. Jenkins objected, and challenged the authority of the superintendent to make such a move. The argument was based on the theory that “principal” and “assistant principal” are not within the same “professional capacity.”

Ms. Jenkins lost the argument at T.E.A. and appealed that decision to Travis County District Court.  Now, she has lost at that level also. The judge, without a written explanation or analysis, simply affirmed the ruling of the Commissioner.  The superintendent did not violate Texas law, did not change the “professional capacity” of Ms. Jenkins, by moving her from the principal’s job to an assistant position.  The judge affirmed the Commissioner’s ruling that the term “professional capacity” is broad enough to include both positions.  Any further appeal of this case would go to the Court of Appeals, and that would take some time.

While this case supports the notion of broad authority for the superintendent, it is always wise to talk to your school attorney before ordering a reassignment that might be legally challenged.  The legal analysis needs to take into account a number of factors that should be looked at on a case by case basis.

DAWG BONE: PRINCIPAL TODAY; ASSISTANT TOMORROW.  SAME PROFESSIONAL CAPACITY.

 

 

Dawg Bones

YOU’VE HEARD OF “HELICOPTER PARENTS”? HOW ABOUT “DRONE PARENTS”! ANY ISSUES WITH THAT????

Did you know that Texas already has some laws about the flying of unmanned aircraft?  Turns out that there is an entire chapter of the Texas Government Code (423) that addresses this issue.  The statutes spell out when it is lawful and when it is unlawful to take pictures from the sky via “unmanned aircraft” a.k.a. a drone.

The chapter starts out by listing 19 ways in which unmanned aircraft may lawfully capture images. This includes:

*with the consent of the person who owns the real property or lawfully occupies the property; and

*on public real property or a person on that property.

Do you catch that distinction?   If the drone goes over private property, you need the consent of the owner. But if it goes over the public school….no problem. Take as many pictures as you want, even if it includes identifiable students and teachers.

Interesting.  Or as the late Mr. Spock would have said: “Fascinating.”

That’s the current status of state law, but this situation is changing rapidly.  There are also federal regulations about this, and more regs are in the pipeline, so don’t do anything rash until you consult legal counsel.

DAWG BONE: LOOK UP!  A DRONE!!

 

 

 

Dawg Bones

WHEN THE DOCTORS DISAGREE…

We suspect that no one was acting in bad faith. The teacher in Palo Alto, California, faced a dilemma.  She knew that a child in her class had cystic fibrosis (CF).  Then she found out that another child in the same school—the court calls him C.C.--also had CF.  Or at least that’s what the teacher thought she heard.  So in a parent teacher conference, she told the other parents about C.C.’s condition. She did not have permission from C.C.’s parents to disclose this sensitive information.

On September 11, 2012, school officials told the Chadams, C.C.’s parents, that another child’s parents had “discovered C.C.’s condition.” But the Chadams denied that their son had CF.  Genetic screening that had been done when C.C. was a newborn indicated that he had the “genetic markers” for CF, but he did not have the actual disease.  However, two days later the school received a letter from a doctor recommending that C.C. be removed from the school for the protection of the child who did have CF.

It didn’t take long for the Chadams to produce their own doctor’s letter, which stated that C.C. had never had CF and posed no health risk whatsoever.

Hmmmm. We are educators, not doctors.  The docs disagree.  What to do?

On October 10 the school made its decision, removing C.C. from Jordan Middle School.  The Chadams promptly filed for an injunction to get him back to Jordan. The case settled before going to court and C.C. returned to Jordan Middle School just two weeks later.

But a year later, the parents filed another suit, this time alleging, among other things, that the school district violated the ADA and Section 504.

To win, the parents had to prove that 1) C.C. was a qualified individual with a disability; 2) he was excluded from, or denied the benefits of services or programs, or otherwise discriminated against; and 3) this exclusion, denial or discrimination was based on his disability.   In yesterday’s entry, we explained how the parents were able to establish that C.C. qualified as a person with a disability, even though he was not impaired.  Nevertheless, the court ended up ruling for the school district, based on its conclusion that the district acted on its effort to preserve the safe operation of the school.

ADA regulations specifically allow governmental entities to “impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities.” This has to be based on “actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.”

This case presents an interesting scenario because it looks like the school acted on incorrect information. It turned out that C.C. did not have CF.  However, the school did have recommendations from a doctor that it relied on. Moreover, the “exclusion” was not an exclusion from educational services, but only from Jordan Middle School for a brief period--two weeks.

The court seemed to apply the sometimes uncommon tool of common sense.  The school was caught in a dilemma. There was clearly no intent to discriminate against anyone, just a desire to make sure that all parties were kept safe.  And no doubt, the fact that the exclusion was of short duration, and only to another middle school, factored in.

The case is Chadam v. Palo Alto USD, decided by the federal court for the Northern District of California on November 4, 2014.

DAWG BONE: WHEN THE DOCTORS DISAGREE, CALL YOUR LAWYER.

 

 

Dawg Bones

WHAT DOES IT MEAN TO BE “REGARDED AS” HAVING A DISABILITY?

We have an interesting case from California in which the court wrestled with the notion of “regarded as” having a disability.  As you well informed readers already know, both Section 504 and the ADA define people as having a disability if they 1) actually have one; 2) have a record of one; or 3) are regarded as having one.  Litigation over that third prong in the definition is rare, so let’s take a look at this case.

The case involves a boy named C.C., who had genetic screening done on him as a newborn.  The screening showed that he had the “genetic markers” for cystic fibrosis (CF).  He didn’t actually have CF, but he had the markers.

Fast forward to when C.C. is at Jordan Middle School in Palo Alto.  Somehow, one of the teachers gets hold of C.C.’s medical records, and sees some reference to CF. She is concerned.  There is another child in the school who has CF.  What to do?

The teacher decides to tell the parents of the other kid about C.C.  The court did not rule on the FERPA aspect of this, so let’s just set that aside for today. What the court addressed was the suit by C.C.’s parents, claiming disability discrimination after he was involuntarily transferred out of Jordan Middle School for two weeks.

The court ruled in favor of the school district, for reasons we will explain tomorrow. But for today, let’s look at what the court said about C.C.’s status as an individual with a disability.  He didn’t actually have cystic fibrosis. Does he qualify as an individual with a disability?  The court ruled that he did.

To meet the definition of a person who is “regarded as” having a disability you must show that you suffered discrimination because of an actual or perceived impairment, whether or not that impairment limits or is perceived to limit a major life activity. As you can see, much of this lies in the perception.

Here, the court concluded that C.C. made a good start in his lawsuit. He alleged facts that would show that the school district “acted on the basis of a mistaken belief about C.C.’s status as a genetic carrier for CF and, hence, regarded him as disabled.”

Nevertheless, the school district prevailed in this case. We will talk about that tomorrow. The case is Chadam v. Palo Alto USD, decided by the federal court for the Northern District of California on November 4, 2014.

DAWG BONE: YOU CAN SUE UNDER THE ADA AND 504 BASED ON AN ERRONEOUS PERCEPTION OF YOU THAT LEADS TO DISCRIMINATION.

 

 

Dawg Bones

FAITH AND BEGORRAH!  IT’S ST. PATTY’S DAY!!

Many have asked what breed of dog the Dawg is.  The Dawg is 100% Irish, so he must be an Irish Setter.  Which means he does not work on St. Patrick’s Day.  So go home.  Celebrate your ethnic heritage.  See you tomorrow.

DAWG BONE:  MY FATHER TOLD ME THERE WERE ONLY TWO KINDS OF PEOPLE IN THE WORLD. THOSE WHO ARE IRISH, AND THOSE WHO WISH THEY WERE.  THE DAWG IS OF THE FIRST KIND.

IrishSetter

Dawg Bones

SAME SEX MARRIAGE AND FMLA

DEAR DAWG: JOE AND BOB SAY THEY ARE MARRIED.  TO EACH OTHER.  BOB WORKS FOR US, AND WANTS FMLA LEAVE.  WHAT DO WE DO?

This is just about to change.  On February 25th of this year the Department of Labor issued a new rule, re-defining the term “spouse” for purposes of leave under the Family and Medical Leave Act.

Background: in 2013, the U.S. Supreme Court struck down the federal Defense of Marriage Act.  The case involved a same sex couple who were legally married under the laws of Canada.  The issue was whether or not they were entitled to be treated as a married couple under U.S. federal law. The Court held that they were.

In response to that, the U.S. Department of Labor announced that couples in a same sex marriage would be recognized as spouses if they resided in a state that recognized a same sex marriage.  Thus, Texas school districts would not be required to grant benefits to a same sex couple, since Texas does not recognize same sex marriages.

But on February 25th of this year, the Department of Labor announced a change to this rule. Henceforth, the validity of the marriage will be determined by where it occurred, rather than where the couple lives.  The DOL describes this as a change from a “state of residence” rule to a “place of celebration” rule.

Does this matter in Texas?  Sure it does.  Even though Texas does not recognize same sex marriages (a matter currently the subject of spirited litigation), other states do.  Most states do, as do many other countries.  So if Joe and Bob were lawfully married in a state where such marriages are permitted, and Bob otherwise qualifies for FMLA benefits, he would be entitled to them.  That’s as of March 27, 2015, when the new rule goes into effect.  You can learn more about this at www.dol.gov/whd/fmla/spouse/factsheet.htm.

DAWG BONE: DYLAN HAD IT RIGHT.  THE TIMES THEY ARE A-CHANGIN’.