All posts by Jim Walsh

PROTEST IN DES MOINES

January 30, 2015 Jim Walsh

Kids in a high school in Des Moines, Iowa recently protested the grand jury decisions in Ferguson, Missouri and New York City. The protest lasted about 15 minutes, during the students’ lunch hour. They held signs, marched, chanted, and eventually laid down in a “die in” for 4.5 minutes.

Apparently none of this caused any significant disturbance at the school. On the video of the incident you can see other students watching, while teachers and the principal look on. In fact, the principal complimented the kids for their social awareness and calling the protest “way cool.”

Well, that’s not exactly the way some members of the general public saw it! The news story I read carried comments from readers. Here’s a short sample:

“…in short, [you students] are idiots. Now get back to class.” Fred.

“Fred, they’re not idiots, their gourds are empty and awaiting the next phase of brainwashing you and I are paying for through taxes and tuition.” Kit.

“…these CHILDREN need to be in class learning something worthwhile instead of using these incidents as an excuse to get out of school. The faculty and principal should be fired for failing to maintain control of the school. What a bunch of morons…..Disgraceful.” Terry.

One reader called the kids “no-nothings.” Fortunately, another reader corrected him, pointing out that the term is “know-nothings.”

From the Dawg’s perspective, the principal should not be fired. He should be honored. He respected student free speech, as is required by the U.S. Constitution. Ironically, we know this is true because of a case that arose in the 1960s in Des Moines, Iowa! Tinker v. Des Moines established that students enjoy the constitutional right of free speech, even while they are at school.

The limitation is that they may not cause a “material and substantial” disruption of school. If this protest had disrupted class, or if the “die in” had impeded traffic flow, the principal would be authorized to take some sort of action. But that didn’t happen here, and the principal had the good sense to monitor the situation without trying to stop it. He did not “fail to maintain control of the school,” as Terry charged. In fact, if he had tried to stop this peaceful protest, he would have likely embroiled the school in litigation that would not have ended well for the Des Moines school district.

So hats off to principal Gary McClanahan. You can see the news story and the protest for yourself at this link: http://www.kcci.com/news/students-stage-die-in-protest/30117074

DAWG BONE: STUDENT FREE SPEECH ALIVE AND WELL IN DES MOINES, IOWA!

Dawg Bones

BE THOUGHTFUL ABOUT JOB VACANCY POSTINGS

January 28, 2015 Jim Walsh

At the TSALD/TASPA Conference in December, attorney Wayne Haglund told an interesting story of how an addition to a job vacancy notice helped a community college fend off a claim of discrimination. Looking for a new teacher, the college may have been surprised to get an application from a man with a Ph.D. from a prestigious university and a resume that included multiple publications in peer reviewed journals. Pretty impressive that a guy like that would apply for a teaching position at a community college.

But they didn’t hire him. Instead, they hired a younger woman with a Master’s degree.

The man filed a discrimination complaint. According to Wayne, the job vacancy posting was critical to the defense of the college. The posting included a statement that experience teaching at the community college level would be preferred.

Bingo. The younger woman had that experience. The older man with the impressive academic credentials did not. Was he more qualified? Certainly he was more qualified for many higher education jobs—but not for this one.

So when you post that job vacancy notice, think about what is really important in a candidate, and be sure to include it.

DAWG BONES: THINK CAREFULLY BEFORE YOU POST THAT JOB VACANCY NOTICE

Dawg Bones

CAN REASSIGNMENT LEAD TO LITIGATION?

January 27, 2015 Jim Walsh

In the school setting, what do you suppose would be the equivalent of re-assigning a sheriff’s deputy from “patrol duty” to duty at the jail? According to the 5^th Circuit, the transfer of a deputy from patrol duty to the jail can be viewed as an “adverse employment action.” That means that if the boss did it with an improper motive, the boss may have some serious legal problems.

This came up in Burnside v. Kaelin, decided by the 5^th Circuit on December 9, 2014. Mr. Burnside alleges that Sheriff Kaelin punished him for not supporting him in an election. Burnside was the chair of a law enforcement political action committee (PAC). In his lawsuit, Burnside alleges that Sheriff Kaelin told him that the PAC ought to support him in an upcoming election. Burnside told Kaelin that the membership would have to vote on that, and that the sheriff would be treated just the same as the other candidates. Burnside alleges that Kaelin threatened to move him to jail duty if the PAC did not come through for him, and that Kaelin followed through with that threat just three weeks later.

Normally, a job transfer (in education, we usually call this a “reassignment) does not come under the category of “adverse employment action.” But the court held that some job transfers do fit that description. If the new job is “objectively worse” or “markedly less prestigious and less interesting.” Key Quote:

Here, Sheriff Kaelin took Burnside off the streets and placed him in the jail. The complaint alleges that the transfer was “typically considered by all in [Burnside’s] position to be……a demotion.” Burnside alleged that Sheriff Kaelin himself viewed the transfer as a demotion. One reasonable inference is that Kaelin initiated the transfer to punish Burnside for not supporting Kaelin in the 2012 election….Given the facts and reasonable inferences drawn from Burnside’s complaint, his transfer alleges an adverse employing action under 42 U.S.C. Section 1983.

And that means that Sheriff Kaelin was not entitled to qualified immunity. Thus the suit was not dismissed and will continue, giving Burnside an opportunity to prove the truth of his allegations.

Be cautious before ordering a reassignment that might be viewed as an “adverse employment action,” even when the contract and school policy give you the authority to do so. Check your motives. Make sure that your decision is based on job-related, non-discriminatory and non-retaliatory reasons.

DAWG BONE: A REASSIGNMENT MIGHT BE CHALLENGED AS AN “ADVERSE EMPLOYMENT ACTION”

Dawg Bones

ADMINISTRATIVE REPS AND THE ARD COMMITTEE

January 26, 2015 Jim Walsh

It has to be frustrating for the Miami-Dade County School District to be found guilty of “predetermination” after holding an IEP Team meeting that lasted three full days, with the parents in attendance the whole time. The parties met from 9:00 a.m. to 3:30 p.m. on three separate occasions in an effort to develop an IEP and placement for a student moving from middle school to high school. On top of that, the district sent the parents 59 (59!) “prior written notice” forms following the IEP Team meetings, but was then accused of not providing “prior written notice” as required by law. The parents were represented by a slew of lawyers, one of whom sought to recover for his time at the rate of $600/hour.

The 11^th Circuit Court of Appeals held that the district “predetermined” the boy’s placement at Palmetto Senior High School. That school served 3600 students. The parents wanted their son at MAST Academy, a much smaller charter school operated by the district. There was evaluation data to indicate that a large school would be difficult for the student to deal with, and might exacerbate his problems. But the district insisted on Palmetto, and the court based its “predetermination” claim largely on a transcript of the IEP Team meetings in which the LEA representative was quoted as saying that MAST was “not an option that’s on the table as far as [the Board] is concerned. What our option is, is that he go to his home school.”

“This explicit statement,” said the Court, “that the Board was considering placement only at Palmetto Senior High School, and that bureaucratic policies precluded an alternative placement, weighs strongly in favor of finding predetermination.”

The Court’s opinion makes it clear that the voice of the “administrative representative” carries a lot of weight. The Court noted that “Other Board representatives [i.e., members of the IEP Team], to their credit, seemed ready to discuss whether the Board could accommodate [the student’s] needs by offering a smaller setting for [the student] within Palmetto Senior High School….But the Board representative running the meeting cut this conversation short, saying finally that the placement would be Palmetto Senior High School and that the parents would have to pursue mediation if they disagreed.”

It’s appropriate for the administrative representative to “speak for the school” after a full discussion of all options has been conducted. It’s OK for the school to come to the conclusion that the meeting is going to end in non-consensus, and to explain that to the parents. But the “not an option” remark in this case hurt the district’s case.

So be careful out there. Even when you are tired and frustrated, be careful.

The case is R.L., S.L. v, Miami-Dade County School Board, (11^th Cir. 2014) 2014 WL 3031231.

For today, chew on this Dawg Bone, special ed types:

DAWG BONE: WORDS SPOKEN BY THE “ADMINISTRATIVE REP” AT AN ARD MEETING CAN COME BACK TO HAUNT YOU

Dawg Bones

WHAT TO LOOK FOR IN A 504 COORDINATOR

January 23, 2015 Jim Walsh

I was surprised when I found out that the man listed in the school’s “504 Manual” as the “504 Coordinator” had died three years earlier. I felt that the superintendent should know about this. So I went to her office and asked: “Did you know you’ve got a dead man for a 504 coordinator?”

“Yes,” she coolly replied. “It’s part of our strategic plan. If the parents get angry and call, we’ll just say, ‘Sorry. He can’t come to the phone.’”

I pointed out that such a “strategy” would not work for very long. She let me know that she would not be in the district much longer.

Part of this story is true, and I’ll let you figure out which part. But the episode got me to thinking about what we need in a 504 coordinator.

The responsibilities of the 504 coordinator have grown over the past few years. In 2009, Congress expanded the definition of who is to be served under Section 504. That change in the law, combined with an increase in public awareness of Section 504 has led to many more referrals.

So the 504 coordinator needs a lot of training to keep up with the law.

On top of that, the coordinator needs to have a good sense of the importance of process. Section 504 is as much concerned with process as it is with results. The Office for Civil Rights, which enforces 504, promises not to overturn a decision made by a local school district, even if they disagree with it, as long as they see that you followed the right process.

The coordinator also needs to have some authority within the district to make sure that 504 plans are implemented. 504 teams are much like ARD Committees. Once they determine what the student needs, the district is required to see to it that the student gets what he/she needs. So if a teacher is not taking a 504 plan seriously, the 504 coordinator needs to have some authority to take action.

So you need a pretty sharp cookie to serve as 504 coordinator. And first and foremost, one who can still fog a mirror.

DAWG BONE: FIRST REQUIREMENT FOR A 504 COORDINATOR—STAY ALIVE!

Dawg Bones

A CASE FOR SCHOOL BOARD MEMBERS

January 22, 2015 Jim Walsh

It is well known that individual board members have no authority, unless the board as a body conveys that authority to them. Nevertheless, the stray comments of a single board member can create legal problems for the school district. Consider, for example, the case of Roque v. Natchitoches Parish School Board, 2014 WL 5659387 (5^th Cir. 2014). Mr. Roque is suing the district, alleging that he was not hired as superintendent as a result of racial discrimination. After a board meeting in April, 2009, the board decided to re-open the application process. As a result of that, the board received eight more applications. The board hired one of those eight people—a white man. Mr. Roque, a black man, alleged that this was an act of racial discrimination.

The federal district court dismissed Mr. Roque’s lawsuit, but the 5^th Circuit recently reversed that decision. The reversal was largely based on the comments of one board member. Mr. Roque alleged that that one board member had a big influence on the rest of the board. She made the motion to re-open the application process, and she chaired the search committee. Mr. Roque alleged that this one board member had made the comment that she didn’t feel “that the community was ready for a minority Superintendent.”

This case has a long way to go, and Mr. Roque bears a heavy burden of proof. Proving what one board member said is not the same as proving that the board as a whole made the decision on a discriminatory basis. But the comments of one board member was enough for the 5^th Circuit to reverse the district court’s decision and allow Mr. Roque to continue to pursue this case.

School boards can only take action when they act as a body. But one board member’s inappropriate comments can cause problems for the entire board and for the district. So here is your Daily Dawg Bone!

DAWG BONE: COMMENTS FROM A SINGLE BOARD MEMBER CAN CAUSE PROBLEMS

File this one under RACE DISCRIMINATION, SCHOOL BOARD.

Dawg Bones

FIRING SOMEONE FOR “NO REASON AT ALL”

January 21, 2015 Jim Walsh

I’ve heard people say it. I’ve heard lawyers say it. You’ve heard it too. It goes like this: “An at-will employee can be terminated for good reasons, bad reasons or no reason at all.”

Don’t believe it.

The statement does have a good pedigree. The Texas Supreme Court discussed at-will employment in the case of Matagorda County Hospital District v. Burwell, 189 S.W.3d 738 (Tex. 2006). The court actually said that the at-will employee could be let go for “good cause, bad cause or no cause at all.”

But I still say don’t believe it.

First of all, no one is ever let go for no reason. Just imagine calling in to your office the custodian who has worked for your district for 17 years and telling her, “we are letting you go. No reason for it—I just decided to fire you.” I don’t think you are going to do that.

People are terminated from employment for a reason. There is always a reason. And even though the Texas Supreme Court says that at-will folks can be terminated for “bad reasons” you have to keep in mind that some reasons are so bad that they are illegal. If an employee is terminated because of his or her race, or gender, or disability or age, or for some other reason that violates federal law or state law, the employee has avenues of legal recourse.

The more accurate thing to say is this: at-will employees can be terminated without “good cause.” They can be terminated for any job-related reason that is non-discriminatory, non-retaliatory and does not violate state or federal law.

DAWG BONE: YOU CAN’T REALLY FIRE SOMEONE FOR “NO REASON AT ALL.”

Dawg Bones

HOW THE TEACHERS’ LOUNGE CAN WORK FOR YOU

January 20, 2015 Jim Walsh

If you have some teachers who don’t seem to take IEPs seriously, you might want to make them aware of M.S. v. Utah School for the Deaf and Blind, 64 IDELR 11 (D. Utah 2014).

The court held that the district properly implemented the student’s IEP in one year, but not the second year. Critical to this holding was the unilateral decision of the teacher to discontinue the use of an FM System. Key Quote:

While some deference should be given to teachers, the IEP is created by a team of individuals with various areas of expertise and requires the classroom teacher to implement the components, even the ones that the teacher may not agree with or care to implement.

The word “unilateral” usually spells trouble for a school district in a special education case, where committee decision making is required. The ARD Committee is the architect; the teacher is the builder. The builder is not permitted to deviate from the architectural plans.

Teachers who disagree with IEP content should bring those concerns to the ARDC. If a campus has a widespread problem along these lines, perhaps it is due to administrative neglect. Administrators who become aware of teachers who are not implementing IEPs faithfully should take corrective action. Write up the teacher in a clear directive memo. It need not be harsh or threatening—just clear. Then you can let the teacher’s lounge do the rest of the work for you.

DAWG BONE: TEACHERS NEED TO IMPLEMENT IEPs FAITHFULLY, COMPLETELY

Dawg Bones

MARTIN LUTHER KING ON EDUCATION

January 19, 2015 Jim Walsh

It’s a good day to reflect on the American hero we honor today. We are confident that you are hearing about “The Dream” today. But here are a few other MLK quotes that seem relevant to those who teach.

“The function of education is to teach one to think intensively and to think critically. Intelligence plus character—that is the goal of true education.”

“Never succumb to the temptation of bitterness.”

“Our lives begin to end the day we become silent about things that matter.”