All posts by Jim Walsh

Dawg Bones

DEAR DAWG: WE ARE A CHRISTIAN SCHOOL. CAN WE BUILD OUR STUDENT CODE OF CONDUCT ON BIBLICAL PRINCIPLES?

DEAR DAWG,
I used to be a public school administrator, but I have retired from that business and I’m now serving as principal of a nice little Christian school. I expect that life will be easier for me now. So many laws that apply to the public schools do not apply here. Like Chapter 37.

So I was preparing a new Student Code of Conduct, and thought it would be a good idea to incorporate Biblical principles. We teach THE Bible, and emphasize it as the core textbook for life itself.  So it just seems natural to me that we would also incorporate it into our Code of Conduct. So with that in mind, what do you think about leading off the Code with the following:

If a man has a stubborn and rebellious son who will not obey the voice of his father or the voice of his mother, and, though they discipline him, will not listen to them,  then his father and his mother shall take hold of him and bring him out to the elders of his city at the gate of the place where he lives,  and they shall say to the elders of his city, ‘This our son is stubborn and rebellious; he will not obey our voice; he is a glutton and a drunkard.’ Then all the men of the city shall stone him to death with stones. Deuteronomy 21: 18-21.

Do you think that sets the right tone?
--WANTING TO DO THINGS RIGHT.

 

DEAR WANTING:
Well, we think it’s helpful that the Scripture verse tells us that stoning is to be done with “stones.” But as far as tone….no, we think you could find something more appropriate. You are right that private schools have a lot more flexibility, but we think “stoning” goes a bit too far. You might run into some problems with the local district attorney on that one. Furthermore, your private school is subject to non-discrimination laws, and we notice that this provision only targets one gender. What…you’ve got no “stubborn and rebellious” daughters???? So while we think that incorporating Biblical principles is a great idea, we would suggest something that is less likely to lead to constitutional violations and criminal prosecution. How about: “Train up a child in the way he should go; even when he is old he will not depart from it.” Proverbs 22:6.

DAWG BONE: THE AUTHOR OF DEUTERONOMY WOULD MAKE ONE HECK OF AN ASSISTANT PRINCIPAL.

 

 

Dawg Bones

WHEN DOES THE SCHOOL NEED TO CALL FOR A MANIFESTATION DETERMINATION?

A federal court in Washington has held that the school district is not required to conduct a manifestation determination regarding a student’s conduct until the student is removed for disciplinary reasons for more than 10 school days in a school year. This is a case in which the parents alleged numerous IDEA violations, including that the district did not conduct a manifestation determination when it should have.

The court counted up the days of disciplinary removal and they fell well short of the 10-day standard. In fact, the student was suspended for only a total of six school days over a two-year span. The court noted that the school could have conducted a manifestation, but was not required to do so.

This case, Avila v. Spokane School District #81, is a good illustration of what we call THE FAPE-FREE ZONE. The general rule is that long term disciplinary removals of kids with disabilities require a careful review by the ARD Committee in the form of a “manifestation determination.” Short term removals, on the other hand, can be imposed at administrator discretion. The line of demarcation is 10 days—and that is a cumulative total, meaning that you have to keep track of the days. If a student has been suspended three times, each time for three days, you have used up 90% of your FAPE-FREE ZONE.

The Avila case was decided by the Eastern District of Washington on November 3, 2014. We found it at 64 IDELR 171.

DAWG BONE: YOUR FAPE-FREE ZONE IS TEN SCHOOL DAYS IN THE SCHOOL YEAR, CUMULATIVE. COUNT THOSE DAYS!

 

 

Dawg Bones

THE “DEAR COLLEAGUE” LETTER ABOUT ENGLISH LANGUAGE LEARNERS IS WORTH A GOOD READ…

The Office for Civil Rights at the Department of Education is pumping out “Dear Colleague” letters at a breakneck pace. On January 7th, the subject was ELLs and LEPs—English Language Learner students and Limited English Proficient parents. The letter, which comes from both the DOE and the Department of Justice, is detailed and lengthy, but definitely worth careful study by someone in your district.

For purposes of today’s Dawg Bone, we will just emphasize one part of the letter—the part about ensuring meaningful communication with parents. Here’s a key quote: “School districts and SEAs have an obligation to ensure meaningful communication with LEP parents in a language they can understand and to adequately notify LEP parents of information about any program, service, or activity of a school district or SEA that is called to the attention of non-LEP parents. At the school and district levels, this essential information includes but is not limited to information regarding: language assistance programs, special education and related services, IEP meetings, grievance procedures, notices of nondiscrimination, student discipline policies and procedures, registration and enrollment, report cards, requests for parent permission for student participation in district or school activities, parent-teacher conferences, parent handbooks, gifted and talented programs, magnet and charter schools, and any other school and program choice options.”

Take a careful look at that lengthy list of documents that comprise “essential information.” Keep in mind that the legal duty here is to “ensure meaningful communication.” This is not a passive standard. It calls for “affirmative steps to address language barriers.”

One final note: the Letter cautions against relying solely on a web based automated translation feature: “Utilization of such services is appropriate only if the translated document accurately conveys the meaning of the source document, including accurately translating technical vocabulary. The Departments caution against the use of web-based automated translations; translations that are inaccurate are inconsistent with the school district’s obligation to communicate effectively with LEP parents. Thus, to ensure that essential information has been accurately translated and conveys the meaning of the source document, the school district would need to have a machine translation reviewed, and edited as needed, by an individual qualified to do so.”

DAWG BONE: THE TRANSLATION INDUSTRY IS SURE TO BE A GROWTH BUSINESS FOR THE NEXT FEW DECADES.

 

 

Dawg Bones

RESPONDING TO A LAWSUIT: YOUR THREE BASIC RESPONSES

When someone is accused of wrongdoing they have the opportunity to admit they were at fault and accept the consequences. So, for example, the police officer pulls you over for going 30 in a 20 MPH school zone. You can say: “Yes, I did that, and I am sorry. I am ready to accept the consequences.”

But if you feel that you are being wrongly accused, there are three basic responses available to you.

You can say NO: “NO. I didn’t do that. I’m not guilty.”

Or you can say YES BUT: “YES, I did what you say, BUT there was a good reason. Let me explain.”

Or you can say SO WHAT?: “Yes, I did exactly what you said that I did. SO WHAT?”

We think these three responses apply across the board, from children in school, to poor drivers, to defendants in lawsuits.

Of course, lawyers have special labels to describe these three defenses. The “NO” defense is what we call a “general denial.” Your lawyer files a response to the lawsuit that flat out denies every allegation the plaintiff has made. This puts the burden of proof where it belongs—on the plaintiff who is bringing the lawsuit. You say I was driving 30 in the 20 MPH zone? I deny it! Prove it!!

The “YES BUT” defense is referred to as an “affirmative defense.” It admits the truth of the basic allegation, but then offers a worthy excuse. For example, “YES, I admit that I was driving 30 MPH in the school zone, BUT the blinking light was not blinking, and besides that my mother was in the emergency room, and I was rushing to be by her side.”

The “SO WHAT” defense is usually accompanied by a Motion for Summary Judgment. It acknowledges the truth of the allegation, and then contends that there was no violation of law. “Yes, I was driving 30 MPH. Yes, the light was blinking. But it was a Sunday afternoon and there was no school. No school—no school zone. The speed limit was actually 35.   No violation of the law.”

Most good lawyers will offer all three defenses. “My client didn’t do it, Your Honor. But even if he did, he had a good reason for what he did. And even if it was not such a good reason, what he did is not a violation of law—so toss this case out!”

It’s kind of like playing defense in football. Your football team has three lines of defense: the line, the linebackers, and the secondary. If your linemen stop the play at the line of scrimmage, there is no damage to your team’s cause. If, however, the linebackers stop the play after a gain of 7 yards, you have paid a price. And if the runner runs free for 25 yards before the safety makes the tackle, you have paid a heavy price.

Cases that are dismissed early on are usually dismissed due to the SO WHAT defense. This is accomplished by a Motion to Dismiss early on, arguing that there is simply no basis for legal liability here. For the football analogy—this is a sack or a stop by the line.

If your defense is a YES BUT defense, your litigation costs will be higher. You have to marshal facts and evidence to show the court that there is an “affirmative defense.”

And if that doesn’t work, you are down to a factual struggle over what actually happened. This is when we have expensive jury trials that are long and costly in every sense, even if you “win.” It’s like you prevented the touchdown, but you gave up a lot of yardage.

I know that football season is over, but I still think it’s a pretty good analogy.

DAWG BONE: DEFENDING A LAWSUIT IS LIKE DEFENDING A FOOTBALL PLAY…..SORT OF.

 

 

Dawg Bones

HOW DOES OCR LOOK AT CHARTER SCHOOL ADMISSION POLICIES?

Much can be learned about the thinking of the Office for Civil Rights by reading its report on the investigation of Harmony Public Schools.   Harmony is a very large charter school operator. According to the OCR report, the Harmony school system had 28,500 students as of October, 2014. That’s larger than all but a few colleges in Texas! Those students are served in 15 individual “districts” and 43 charter schools.

The OCR report is based on statistics from the 2011-12 school year, when Harmony served 20,239 students. Here is what caught the eye of OCR: in the specific Harmony schools that OCR looked at, only 11.5% of the students were identified as English Language Learners (ELL). The traditional districts located in the same geographical area had 22.5% ELLs. The Harmony schools served only 2.7% students with disabilities; this compared with 7.3% in the traditional public schools.

What’s going on here? The traditional public school is serving twice as many ELLs and more than twice as many special education students. Discrimination?

OCR concluded that “HPS’ admissions policies and procedures are nondiscriminatory on their face with respect to race/national origin, ELL status, and disability status. HPS selected students for admission to its charter schools through a random lottery. HPS did not request information regarding race/national origin, ELL status or disability status on the application form or during the admission or selection process.”

So far so good. But what about those numbers? OCR was concerned about that, noting that ELL and special education students were “underrepresented” to a “statistically significant” extent. Perhaps it was because of that concern that HPS entered into a voluntary resolution agreement, committing to some changes in their practices. We found this language from the OCR report interesting:

OCR is concerned, however, that the exclusion from admission and enrollment in HPS charter schools of students with a documented history of a criminal offense, juvenile court adjudication or discipline problems may improperly contribute to the lower enrollment of students with disabilities or ELL students in the HPS charter schools.

If OCR finds this troubling, they need to address the Texas Legislature, because what HPS is doing is specifically authorized by state law. Texas Education Code 12. 111(a)(5)(A) allows a charter to “provide for the exclusion of a student who has a documented history of a criminal offense, a juvenile court adjudication, or discipline problems under Subchapter A, Chapter 37.”

Traditional schools, of course, cannot do that. The OCR report is dated November 26, 2014; Docket No. 06-11-5004 from the Southern Division, Dallas Office of OCR. We found it at 114 LRP 50981.

DAWG BONE: CHARTERS CAN BE INVESTIGATED BY OCR TOO!

 

 

Dawg Bones

HARPER LEE’S SECOND NOVEL

DEAR DAWG: I heard that Harper Lee has written a second novel, entitled Tequila Mockingbird. What can you tell us about it? Good for assigning to students?

Yes, we heard those rumors. The story was that Tequila is a sequel to Lee’s famous first novel. In the sequel, an aging Atticus Finch checks into rehab to address his drinking problem, exacerbated by his frustration at the injustice of the Tom Robinson trial. His daughter, Scout, now an adult, teams up with Boo Radley, who has now become a high school band director, to get the old man back on his feet. Romance develops between Scout and Boo. So it’s sort of a romantic comedy. Look for Reese Witherspoon and Jude Law in the movie.

Actually, none of that is true. It’s just that it’s Friday and we wanted to have a little fun. We look forward to Ms. Lee’s new book, Go Set a Watchman. The true story of this book is far more interesting than the rumors. She wrote this one first—before Mockingbird. And it does, indeed, tell the story of a grown up Scout returning to her home in the south, and interacting with her father, attorney Atticus Finch. The manuscript of this novel included flashbacks in which Scout recounted stories from her childhood. Ms. Lee’s editor liked the flashbacks more than the novel, so she suggested that Ms. Lee write a second novel from the perspective of the young girl, Scout.

Thank God for that editor. As a result of that suggestion, we have the classic novel, To Kill a Mockingbird. The Dawg knows some folks who were inspired to become lawyers as a result of Mockingbird and its portrayal of the heroic Atticus Finch. In fact, one of my law partners, Craig Wood from our firm’s San Antonio office, was honored with the Atticus Finch Award a few years ago.

So let’s all hope that Go Set a Watchman is equally inspiring.

DAWG BONE: ANY BOOK THAT HAS A LAWYER AS THE HERO IS OK WITH THE DAWG.

 

 

 

Dawg Bones

JUST WHAT EXACTLY DOES “UNPROFESSIONAL” MEAN?

I always scour the local Austin newspaper carefully during and after the annual Midwinter Conference. Frequently I will find a small item that reports something like this: “John Doe, assistant superintendent in the Wayabovenormal ISD, was arrested in Austin on Thursday night. Charges for disorderly conduct and public intoxication are pending. Representatives of the school district were unavailable for comment.”

I saw no such item this year, so KUDOS to all of you who attended Midwinter without getting arrested!

But this brings to mind the term “unprofessional.” You can bet that someone in the Wayabovenormal ISD is going to accuse Mr. Doe of “unprofessional” conduct. But what exactly does that mean?

In workshops I have conducted about employee documentation I have recommended that supervisors think twice before slinging this loaded word around. There are two reasons for that. First, it is very vague. What you think is “unprofessional” may look quite different to someone else. Secondly, the term reflects on character, which means you are likely to get a strong, defensive response. It is not unusual for the recipient of a memo, charged with “unprofessional” conduct, to throw the term right back at the supervisor. “Unprofessional, you say! Hrmph!! Let’s talk about your behavior at last years’ coaches’ conference!”

On the other hand, there are times when “unprofessional” just seems like exactly the right descriptor. So we would not say that this word should never show up in a corrective memo—only that we should think carefully about its use. If you think the employee’s conduct was “unprofessional” can you point to the specific standard that was violated? Did the employee disparage students? Was the employee rude to a parent or colleague? Usually you can cite some local policy or ethical standard that establishes what “professional” means. Falling short of that standard would be “unprofessional.” So we think it is a good idea to tie this term to a standard.

Remember: there is GOOD DOCUMENTATION and there is BAD DOCUMENTATION. Make sure yours is of the GOOD variety. It’s more…..professional.

DAWG BONE: BE CAREFUL WHEN ACCUSING SOMEONE OF “UNPROFESSIONAL” CONDUCT.

 

 

Dawg Bones

CAN YOU DISCRIMINATE BASED ON DISABILITY WHEN YOU DIDN’T MEAN TO?

A federal court has concluded that the Ohio High School Athletic Association may be guilty of disability discrimination, even though it had no intention of doing so. The case illustrates an important point regarding Section 504 and the Americans with Disabilities Act.

The case involved a student with a learning disability who attends a private high school in Cincinnati. He wants to play soccer for his high school team. In Ohio, private schools are part of the OHSAA, so that’s not the issue. The problem is that he doesn’t live in Ohio—he lives across the river in Kentucky. The OHSAA has an “Instate Residency Rule” that simply says you have to live in Ohio to participate in interscholastic sports. There are some exceptions, but none that applied to this student. So his parents went to court to seek an injunction to allow him to play.

They got it.

The court ruled that the parents did not have to prove that the OHSAA acted with any sort of bad intention. They only had to prove that the Association refused to provide an accommodation that was reasonable. The requested accommodation would be deemed “reasonable” unless the OHSAA could prove that granting the request would create an undue burden, or require a fundamental alteration of the program.

The OHSAA was unable to convince the court that granting this waiver would open up the proverbial floodgates. Restricting participation to Ohio residents had no bearing on safety, and was not necessary to prevent “redshirting.” The court was convinced that the Association could craft a limited waiver process “based on easily verifiable, objective criteria” that “would apply to only a narrow pool of potential students, and would not result in a substantial administrative burden.”

The case is Steines v. Ohio High School Athletic Association, decided by the federal court for the Southern District of Ohio on November 10, 2014. We found it at 64 IDELR 165.

DAWG BONE: IF YOU CAN ACCOMMODATE THE DISABILITY WITHOUT “UNDUE BURDEN” OR “FUNDAMENTAL ALTERATION” YOU HAVE TO DO SO.

 

 

 

Dawg Bones

WRONGFUL URINATION ENDS UP IN FEDERAL COURT

Happy Fat Tuesday! For our pre-Lenten offering, let us consider how a school district in Washington prevailed in a lawsuit over disability discrimination.

The middle school principal assigned the student to Saturday school as a punishment after the student urinated on the floor, walls and sink of the school. We are wondering how the Student Code of Conduct addressed this behavior. “Wrongful urination” maybe? But you must also be asking: how does something like this end up in federal court? Can’t you just imagine the federal judge, sipping the morning’s first coffee, asking the bailiff: “what do we have on the docket today?” The bailiff responds: “A 7th grader peed on the floor at school, Your Honor.” Hizzoner would be asking himself: “when did I become the assistant principal?”

Of course, there was more to this lawsuit than this one incident. The parents alleged that the school had refused to implement the boy’s 504 plan in a variety of ways, or had done so inconsistently. There were allegations that teachers disparaged the student, and that the school ignored evidence of bullying. So the lawsuit was over a lot of things.

With regard to this particular incident, the parents alleged that other kids were involved in the incident, but only their boy was punished. They asserted that another student turned off the lights in the classroom. This caused our plaintiff “anxiety and loss of bladder control.” Sure enough, the student was on a 504 plan, and one of his issues was “anxiety.”

The court dismissed the lawsuit, largely due to the failure of the parents to present any evidence of intentional wrongdoing by the school. Claims seeking damages under Section 504 require evidence of intentional discrimination.

On this particular claim, the court relied on the good investigation conducted by the school. That investigation concluded that another student did, in fact, flick off the lights “for a few seconds.” But it also concluded that the wrongful urination began before that, and continued after that. The court concluded: “The material facts show that [the school district] disciplined [the student] because [the school district] found, after an investigation, that [the student] was responsible for the incident.” Emphasis added.

The case is Held v. Northshore School District, 64 IDELR 162. It was decided by the federal court for the Western District of Washington on November 17, 2014.

DAWG BONE: A GOOD INVESTIGATION SERVES YOU WELL WHEN YOU END UP IN THE COURTHOUSE.

 

 

Dawg Bones

5th Circuit rules for Fort Bend in special education case—reversing lower court.

The 5th Circuit Court of Appeals has ruled that Fort Bend ISD is not legally responsible for the costs of a residential placement for a student with a disability.  There was a lot at stake in the case, as the lower court had ordered reimbursement of tuition at the rate of $7,000 per month, along with over $600 in transportation costs and $90,000 in attorneys’ fees. The appellate court reversed, and rendered judgment in favor of the FBISD.

The basis for the ruling was the court’s conclusion that the private, residential placement chosen by the parents was not “appropriate.” The parents had placed their son at CALO—Change Academy Lake of the Ozarks. The court described CALO as a mental-health facility in Missouri. The high school student had previously attempted suicide, and was regularly using marijuana. Pulling him out of the public school, the parents first put the student at a wilderness camp in Utah, and then at CALO.

The court cited two crucial factors in its analysis. Was the child placed at the facility “for educational reasons”?   And would progress at the facility be judged primarily by educational achievement? The parents failed to satisfy either of those tests.

The first factor concerns the “motivation of the person making the placement.” This placement was motivated by fear of another suicide attempt, and concern over substance abuse. The court said that “there is no evidence showing that [the parents] then enrolled Z.A. at CALO for educational reasons.”

As to the second factor: “The evidence, however, plainly supports finding that Z.A.’s progress was not judged primarily by educational achievement.” Instead, the effort was to treat the student’s underlying disability. Educational achievement may have been an outcome, but it was not the primary indicator of success.

The court ordered that its opinion not be “published” in the official legal reports that create precedent to be followed in future cases. Nevertheless, the opinion is published on the 5th Circuit’s website, and provides a good illustration of the analysis courts will use in dealing with residential placements.

The case is Fort Bend ISD v. Douglas A., decided by the 5th Circuit on February 5, 2015. Here’s the link to the opinion: http://www.ca5.uscourts.gov/opinions/unpub/14/14-20101.0.pdf

DAWG BONE: TO GET REIMBURSED FOR A RESIDENTIAL PLACEMENT, PARENTS BEAR A HEAVY BURDEN OF PROOF.