All posts by Jim Walsh

Dawg Bones

REMEMBER THE “I” IN IEP

How do you write an IEP for a student who is way behind in reading?  Age level? Grade level?  Reading level?

Consider Jefferson County Board of Education v. Lolita S., 64 IDELR 34 (11th Cir. 2014).  The court held that the IEP denied the student FAPE because it was not individualized.  The court pointed out that the student read at a 1st grade level, but his goal for reading was “derived from the state standard for ninth-grade students.”  And there was no explanation in the IEP as to how this would be accomplished.  It did not help the district’s case that the IEP had another student’s name on it, which was crossed out and replaced with this student’s name.  The transition section was also inappropriate, due to the use of “stock language.”  For example, the goal was “student will be prepared to participate in post-secondary education” but this did not match the student’s diploma track.  He was not on track for a regular diploma or post-secondary education.

We don’t know what happened in this case, but we suspect that the NCLB goal of all students being proficient at grade level, and being tested at grade level, may have played a part in this decision. But remember: IEPs must be individualized, tailored to the strengths and weaknesses of the particular student.  It sounds like this IEP started out with a good description of “present level.” The student was reading at a first grade level. But if that’s the case, how is the district going to get the student to the 9th grade level in one year?  Such an ambitious goal looks unrealistic and doomed to failure.  At a minimum, such an IEP should provide a clear road map for how such a goal would be accomplished.

So chew on this Dawg Bone for today:

DAWG BONE: EVEN IN THE NCLB ERA, IEPs MUST BE INDIVIDUALIZED

Dawg Bones

5TH CIRCUIT SAYS NASTY RAP SONG ON YOUTUBE IS “FREE SPEECH”

We’ve come a long way from Tinker v. Des Moines. In that seminal decision, the U.S. Supreme Court held that public school students do not shed their constitutional rights when they enter the schoolhouse.  The case was right for its time—a time of civil unrest and protest, most of it peaceful. Mary Beth Tinker was the poster child for peaceful protest, wearing a simple black armband as a symbol of her support for a Christmas truce in Vietnam.

Now comes Taylor Bell, poster child for the pervasively vulgar culture of 21st Century America.  Mr. Bell published a rap song on Facebook and YouTube.  According to the 5th Circuit, Mr. Bell’s rap is entitled to constitutional protection, the same as Mary Beth Tinker’s armband.   The rap is about as nasty as raps can be.  It includes the N-word, the B-word, the S-word, the P-word, the MF-word and the F-word.

But the offensiveness of the rap goes far beyond the vulgar language.  The rap is personally insulting to identifiable people.  It accuses two coaches of sexual misconduct with students.  It comments on the size of the breasts of one of the coach’s wives (using the T-word).  The young artist suggests that one of the coaches will “get a pistol down your mouth/Pow.”

Pretty much the same as Mary Beth Tinker’s silent protest in support of peace, don’t you see…..

School officials in Itawamba, Mississippi sent Mr. Bell (18 years old) to an alternative school and barred him from extracurricular activities for the remainder of a nine-week grading period.  But the court said that the punishment was illegal, a violation of the constitution. The school district could not produce evidence of any serious disturbance at the school. Classes were taught. Bells rang. Buses ran.  Since there was no “material and substantial disruption” there was no basis for the school to infringe on this off-campus artistic expression.

The court’s majority opinion made much of the fact that the rap was written and produced off campus.  Schools are allowed to prohibit vulgar and lewd expression that occurs at school or a school function, but the court concluded that the rap was done at home and never performed at the school.  The court did not view the omnipresence of technology as having any impact on this.  The dissenting opinion said that this on campus/off campus distinction is arbitrary and “both tortures logic and ignores history.”

I expect most of you agree with the dissenter on that, but the majority of the 5th Circuit did not.  The majority opinion says that the distinction between what happens on campus and what happens off campus remains important.  That’s how they read the Supreme Court’s decisions and they are unwilling to change that without clear guidance from the Supreme Court.

Where does that leave you?  It leaves you largely powerless to restrict or punish student expression that occurs off campus.  The 5th Circuit in this case holds that such expression is constitutionally protected unless it amounts to a “true threat.”  What is a “true threat”? We’ll cover that in a future Law Dawg post.

Your Law Dawg is hoping that this decision will be reviewed by the 5th Circuit en banc.  If it is, we think there is an excellent chance that this decision will be reversed. But unless and until that happens, this is an important precedent in the arena of student free speech.  The case is Bell v. Itawamba County School Board, decided by the 5th Circuit on December 12, 2014.

DAWG BONE:  JUST BECAUSE IT’S ON YOUTUBE FOR ALL THE WORLD TO SEE DOES NOT MEAN IT IS ON YOUR CAMPUS.  NASTY RAP SONG IS CONSTITUTIONALLY PROTECTED.

Dawg Bones

WHAT DOES “BEST INTERESTS OF THE SCHOOL DISTRICT” REALLY MEAN?

It is conventional wisdom that school administrators need not tell a probationary teacher why his or her contract will not be renewed for another year.  Some lawyers advise that you simply say nothing. Others suggest that you should say “It’s in the best interests of the school district.”

That’s the language used in the law.  Section 21.103 of the Texas Education Code tells us that a probationary contract can be terminated at the end of its term (therefore, not renewed) “if in the board’s judgment the best interests of the district will be served by terminating the employment.”

But it is wise to keep in mind that if the teacher pursues legal action challenging the termination, an explanation is going to have to be offered at some point.  If the teacher files a discrimination complaint, alleging that the termination was improperly based on race, sex, disability, age, religion or national origin, the school is going to have to refute that allegation by explaining the reason for the decision.  “Best interests of the district” does not really answer the question.

So we think it is wise to keep this in mind before you have a conversation with a probationary teacher in which the subject is broached. What is the real reason?  If you cannot articulate a non-discriminatory, non-retaliatory, job-related reason why this action is in the best interests of the district, then perhaps you should re-think the decision.  And in any event, be sure to contact your school’s attorney to discuss the proper procedure and timing for these decisions.

DAWG BONE: ENDING THE PROBATIONARY CONTRACT: YOU DON’T HAVE TO EXPLAIN, BUT YOU SHOULD BE ABLE TO

Dawg Bones

ARD COMMITTEES MUST RELY ON EVALUATION DATA

Pop Quiz!  Evidence is to the jury as ______________ is to the ARD Committee. What should go in the blank?

The correct answer to our analogy question is EVALUATION DATA.  Evidence is to the jury as EVALUATION DATA is to the ARD Committee.  All decisions by the ARDC should be based on the evaluation data. Such is the lesson of Blount County Board of Education v. Bowens, 60 IDELR 218 (N.D.Ala. 2013).

In this case, a parent took her child to a clinic sometime before the third birthday. The clinic  diagnosed the child as autistic and called for a structured, fulltime preschool for at least 25 hours per week.  The district “accepted” this evaluation and concluded that no further evaluation was needed.  The parent placed the student in a private program consistent with the private evaluation.  The district never put a specific IEP on the table and only offered a program for two to three days a week.  Later the parent asked for reimbursement for the private school tuition and she got it.  Key Quote:

As a threshold matter, the evidence is undisputed that Blount County accepted the Sparks Clinic’s evaluation.  Consequently, Blount County had an obligation to provide a FAPE consistent with the Sparks Clinic’s determination that J.B. required a minimum of twenty-five hours of intensive instruction per week and that J.B. “attend a structured preschool on a full-time basis.”  Therefore, Blount County’s offer for J.B. to attend the Multi-Needs Center for two to three days per week fell significantly short of satisfying J.B.’s “unique needs” as outlined by the Sparks Clinic. 

 This is a good illustration of how dangerous it is for the school not to conduct its own evaluation.  The court basically points out that the only evaluation data that existed called for a fulltime structured program. With no evaluation of its own, the district had no basis to provide anything less than that.  If the district “accepts” the private evaluation and chooses not to do its own, it should be prepared to provide the level of services recommended by the private evaluation.  This decision was affirmed by the 11th Circuit at 63 IDELR 243 (11th Cir. 2014).  The appellate court treated this not as a unilateral placement by the parent, but rather a placement that the school acquiesced to.  Still, the starting point for the school’s legal problems was the failure to conduct its own evaluation.

DAWG BONE: EVALUATION DATA IS THE RUDDER THAT STEERS THE SHIP.

Dawg Bones

USING A STUDENT AS “BAIT”?  NOT A GOOD IDEA

There is a lawsuit brewing in Alabama in which the plaintiff alleges that an 8th grade girl was used as “bait” so that a boy could be “caught in the act” of sexual harassment.  The plan was for teachers to intervene before the girl was harmed.  But according to the suit, the sting operation did not go well.  The boy took the “bait,” but the rescue squad arrived at the scene of the crime in the boys’ bathroom too late.  Medical evidence confirmed the girls’ story—she had been raped.

The suit is against the district, the principal, two assistant principals and a teacher’s aide.  The district court dismissed most of the lawsuit for reasons that are too complicated to explain here.  But suffice it to say that regardless of how the legalities are resolved, this was a colossally bad idea in the first place.

Two points are worth emphasizing.  First, the tragic miscalculation here sprung from the notion that the school could not address the boy’s reported sexual advances until he was “caught in the act.” That’s just not true. What is true is that punitive disciplinary action could not be taken without some evidence of wrongdoing. But a school district should have other tools in the toolbox to address sexual harassment.  Where was the counseling? Where was the proactive effort to teach appropriate conduct between boys and girls?  Where was the parent involvement?

Second, there is no way that students should be allowed to be involved in “sting” operations like this.  Schools need to enforce their policies about sexual harassment without putting kids at risk.

The case is on appeal to the 11th Circuit, and it has drawn considerable interest from advocacy groups and the Department of Education.  The case is Hill v. Madison County School Board, 957 F.Supp.2d 1320 (N.D. Ala. 2013).

DAWG BONE: LET’S NOT BE USING STUDENTS IN A “STING” OPERATION.

 

 

Dawg Bones

COURT OKs INTERVIEW PROCESS

In a recent decision, the 5th Circuit noted that it was acceptable for an employer to rely on applicant scores on an interview, even though the process is inherently subjective.  Rodolfo Martinez sued the Texas Workforce Commission, alleging that he was passed over for a promotion in favor of an Anglo woman.  Mr. Martinez was able to establish what the courts call a “prima facie” case of discrimination.  To do this, all he had to show was that 1) he is a member of a protected class; 2) he sought and was qualified for the position; 3) he was rejected for the position; and 4) the employer continued to seek applicants with the applicant’s qualifications.  This comes from Haynes v. Pennzoil Co., 207 F.3d 296 (5th Cir. 2000).

Since Mr. Martinez passed this first test, the burden shifted to the employer to show that there was a legitimate, non-discriminatory reason for its decision to hire someone other than Mr. Martinez. The Workforce Commission asserted that Ms. Quesnel was more qualified for the job than Mr. Martinez, and on top of that, she gave a better interview.

The 5th Circuit agreed, and thus, upheld the decision in favor of the Workforce Commission.  For our purposes, the most interesting part of the decision is the discussion of interviews as part of the process.  After all, qualifications are often objective—one person has a Master’s while the other has a Bachelor’s.  Or one person has more relevant experience.

But an interview process inherently involves subjective judgment calls.  Is that OK?  Here’s what the 5th Circuit said:

An employer may rely on subjective reasons to select one candidate over another, however, “such as a subjective assessment of the candidate’s performance in an interview.” Alvarado v. Texas Rangers, 492 F.3d 605 (5th Cir. 2007). 

Here, the TWC asked the candidates an identical set of questions and scored them based on the similarity of their answers to a model answer.  Because the TWC has provided some evidence demonstrating how it scored the applicants in the interview process, we conclude that the subjective assessment may serve as a legitimate, non-discriminatory reason for its decision and the use of the subjective assessment does not serve as evidence of pretext.

When two people are qualified for the job and you have to choose one, you are making a difficult judgment call.  Judgment calls, by their nature, involve subjective judgments.  Here, the court recognizes that reality, but relies also on the fact that the employer provided some guidance for that judgment. There was a “model answer” that was used as a measuring stick of sorts.  The court seemed to like that.

 

The case is Martinez v. Texas Workforce Commission—Civil Rights Division, decided by the 5th Circuit on December 30, 2014.

 

DAWG BONE: MAKE SURE YOUR INTERVIEW PROCESS IS FAIR, NON-DISCRIMINATORY.

Dawg Bones

TRANSGENDER STUDENTS AND THE BATHROOM

You have a transgender student in your school.  What bathroom do they use?  There is a lot of legal talk about this, but no clear, across the board answer. Keep in mind that part of the problem is that the term “transgender” is being used to describe a wide array of students, ranging from those who believe that their gender identity does not match their biology, to those who have had surgery.

The Department of Education’s Office of Civil Rights recently said that a transgender student is “a student who consistently and uniformly asserts a gender identity different from the student’s assigned sex [at birth], or for which there is documented legal or medical evidence that the gender identity is sincerely held as part of the student’s core identity.”  Districts should keep in mind that OCR has stated that transgender students are protected from discrimination under Title IX and that protection might sometimes mean that schools will need to consider permitting such students to use the bathroom that matches the gender with which the student identifies rather than the student’s biological sex.

So this is an area where the wisest thing we can say is to talk to the parents, get more information, and call your lawyer.

You are likely to face criticism whatever you decide. In fact, you might face litigation whatever you decide.  At least two courts have said that a school discriminated by not allowing a transgender student to use the bathroom that matched their gender identity.  OCR said the same in a California investigation.  But now there is at least one suit we have learned about that claims that a school is violating the law by allowing a student born male to use the girls’ restroom.  This was reported by the Louisville Courier Journal in a story about Atherton High School in Jefferson County. The suit was filed by a group called the Alliance Defending Freedom.  This group recently sent an email to school superintendents across the country confidently proclaiming that there is no legal duty to allow a transgender student to use a bathroom other than the one that matches their biological sex.  On top of that, the group enclosed a policy to that effect, and offered to defend any legal challenge you get at no cost.  That may sound like an attractive offer, but remember, this is a group that is advocating for their view on this matter. We think your legal advice should come from a lawyer who is not advocating any particular point of view, but only interested in serving you as a client.

This is a classic example of a situation where dispassionate, objective legal advice is needed.  Maybe 10 years from now the law on this subject will be crystal clear, but that is not the case right now.  Get information. Talk to the parents and student.  Assess all your options. Call your lawyer.

DAWG BONE: TRANSGENDER STUDENTS AND THE BATHROOM: NO EASY ANSWERS

Dawg Bones

PHYSICAL RESTRAINT

Dear Dawg: We’ve got some folks asking us to promise that we will never use physical restraint on certain kids.  What should we say?

We think you should politely but firmly refuse to promise that physical restraint will never be used with a student.  Oftentimes a request like that comes from caretakers and foster parents of kids in foster care.  It makes sense that caretakers for those kids would ask for this.  Many of those kids have endured horrific abuse from authority figures in the past. It makes sense that their caretakers would try to protect them from any use of physical force from teachers or administrators.

But it is dangerous to promise that physical restraint will never be used on a particular child.  It may be a commitment that you cannot keep.

Keep in mind that physical restraint can be imposed on a student in a Texas public school ONLY in a genuine emergency.  Can you tell me exactly when your next emergency is going to occur?  No?  I didn’t think so.  Emergencies are unpredictable.  You never know when restraint might be needed, and you cannot predict with accuracy the students who may create an emergency.

Our regulations define “emergency” as “a situation in which a student’s behavior poses a threat of (A) imminent, serious physical harm to the student or others; or (B) imminent serious property destruction.”  19 T.A.C. 89.1053(b)(1).

In a nutshell, physical restraint is a tool designed to prevent greater harm. We think it would be foolish to promise that you would never use it.  But do be sure that parents are aware that this is something that 1) is done only in an emergency; 2) that they will be notified of it promptly, and in writing; and 3) each incident of physical restraint will be documented in the child’s folder and available for review at the annual ARD meeting.

DAWG BONE: PHYSICAL RESTRAINT IS A TOOL DESIGNED TO PREVENT GREATER HARM.

Dawg Bones

WHO IS AN “APPROPRIATE” PERSON IN THE SCHOOL SETTING?

Like many terms used in the law, “an appropriate person” has a special meaning, and it has nothing to do with your table manners.  The term comes from a Texas case that made its way all the way to the U.S. Supreme Court—Gebser v. Lago Vista ISD.  In that case, the Court outlined the circumstances that would make a school district liable for something that one of its employees, or students did.  Gebser involved teacher-to-student harassment.  The issue was: should Lago Vista ISD be held responsible?  Under what circumstances?

The Court held that LVISD would not be liable unless “an appropriate person” had actual knowledge of what was going on, and responded with “deliberate indifference.” What makes a person an “appropriate person”? Generally, it means that you are vested with the authority to take corrective action.

So if the harassment is being done by a teacher, the principal would probably qualify as an “appropriate person.”  As the teacher’s boss, the principal has the power to take corrective action.   If the harassment is done by the principal, the superintendent would be viewed as “an appropriate person.”

The Office for Civil Rights has a very expansive notion of who is “appropriate” although they use the word “responsible.”  The bottom line on this is that if someone employed by the school district has the power to take action to address sexual harassment that is going on in the school setting, that person is likely to be considered “appropriate.”  Make sure you are providing training for everyone about these responsibilities.

Here’s your Dawg Bone for the day:

DAWG BONE: MAKE SURE THAT ALL OF THE “APPROPRIATE PERSONS” ARE DOING THE RIGHT THING.

Dawg Bones, Sample Dawg Bones

WHY READ THE LAW DAWG?

Subscribing to and reading the Law Dawg is one of the most mature things an educational professional can do.  It falls into the category of IMPORTANT but not URGENT.  It’s a mark of maturity when you regularly take care of things that are IMPORTANT but not URGENT.

The most mature thing I do is to go to the dentist.  I can still remember sitting in the dentist’s chair as a child, surrounded by large people, instruments of torture and whirring sounds.  I was terrified.   I vowed then: “When I grow up, I am NEVER going to do this!”

But now I do, even when I am not weeping and suffering with a toothache. I think this proves that I must be a grown up. After all, there are four unpleasant realities about going to the dentist.  First, it takes time that could be spent in a more enjoyable way. And almost anything is more enjoyable.  Second, it costs money.    Third, it sometimes hurts.  Fourth, even when it doesn’t hurt, I am afraid that it will hurt.

Despite all that, I go to the dentist regularly.  Upon returning from one of these visits, I typically spend the rest of the day patting myself on the back for my maturity.  What a Big Boy I am!!  After all, one feature of maturity is the ability to deal with what is important, but not urgent.  Preventive dental care is important, but not urgent.  We go to the dentist regularly so that it never becomes urgent. A throbbing toothache creates urgency, but no one wants that.

Educators are in the maturity development business. The goal is to help students understand what maturity means, and to develop those habits that cultivate maturity.  Balancing the checkbook.  Rotating the tires.  Changing the air conditioner filters.  Going to the dentist.  All of those “maintenance” tasks are important, but rarely urgent.

Thus we launch this new enterprise as an adventure in maturity. We hope you will find the daily posts helpful, relevant, timely and occasionally entertaining.  Here’s your Dawg Bone for the day:

DAWG BONE:  READING THE LAW DAWG IS LIKE GOING TO THE DENTIST, ONLY WITHOUT THE LAUGHING GAS OR THE LECTURE ABOUT FLOSSING.