Today is Memorial Day, a day when we remember and honor those who have died in service to our country. That should include the many educators who have been murdered while serving children in our public schools. Last week we added two more Texas teachers to that grim list.

In honor of Uvalde CISD teachers Irma Garcia and Eva Mireles, along with the many other educators whose memories should be honored this Memorial Day, I offer something I wrote for Texas School Business magazine in 2011.

This column is dedicated to Vicki Kaspar. Remember her? Perhaps not. A lot has happened since Ms. Kaspar’s name appeared on the news crawl at the bottom of the TV screen. It was not her many years of service that got Vicki in the national news. She served Millard South High School in Omaha, Nebraska for 23 years, the last 13 as assistant principal. Vicki achieved national recognition on the day before her 59^th birthday, but of course, there is nothing newsworthy about a longtime educator turning 59. Nor was it worthy of CNN’s attention that Ms. Kaspar was loved and respected by faculty, parents and kids. Vicki’s son was a teacher at the same school, which probably tells you something about how much she valued education. But none of that would get her known outside of a small community of people in Omaha.

            What got Vicki on the news was the bullet that she took. She was killed by a student she had recently suspended. The kid apologized for his actions in advance, on Facebook, while at the same time, claiming that the “school drove me to this.”

            It was big news for exactly three days, from January 5 to January 8. On the 8^th, a man killed six people and severely wounded Congresswoman Gabby Giffords in Tucson, Arizona. Vicki’s 15 minutes of fame ended.

            The President showed up in Tucson a few days later to honor those who died and those who acted heroically after the onslaught at the Safeway store. That’s as it should be. Unfortunately, school shootings are too common for us to expect that the President would show up every time an educator is gunned down. But here at this magazine, this “niche publication” aimed at educators, we did not want to let the moment pass without offering a few words of praise for your fallen colleague, Vicki Kaspar.

            Of course I did not know her. But I studied her picture, and what I could read of her online and I felt like I have known her for years. I’ve known so many like her. You know the type—that longtime teacher you can count on for a laugh or two when things seem particularly crazy. Folks like that usually have a grandchild or two, with pictures on the cell phone they will show you at any opportunity. She could retire, you know, but she still likes working with the kids. And she will tell you that the kids really haven’t changed over the years—but their circumstances have, and their values have, and their families have. She will let you know that the support that educators used to be able to count on has eroded, and it’s too bad. But she carries on.

            That’s who Vicki Kaspar was.

            I’m not offering any solutions here. We already have laws about gun free zones around schools. We have counseling and special services available to troubled kids. We wonder how this could have happened and what we should do to make sure it never happens again, but none of the solutions will bring Assistant Principal Kaspar back to us.

So we’re not offering a solution or engaging in armchair psychiatry. We’re just mourning. Grieving. When something like this happens, people sometimes create spontaneous vigils where they hold candles and stand together in silence. People set up temporary shrines, with flowers and teddy bears. That’s all we’re doing with this column. We just did not want too much time to pass before we stopped and thought a moment about the death—and the life--of Vicki Kaspar.  She will be remembered for her death. But it is her life that she gave to public education. Let us remember her as one of those every day heroes who make the world work.  

DAWG BONE: MEMORIAL DAY IS ABOUT MORE THAN SOLDIERS.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!

Lawyers are a shameless lot. We sometimes cite our ethical duty to zealously represent our client’s interests to justify outrageous demands. Today I offer a new entry in the Sheesh-O-Meter file: the case in Pennsylvania where the lawyer argued that the local school district should refund the school taxes the client had paid for several years. 

What was the basis for this claim? The parents asserted that their child had not received the Free Appropriate Public Education (FAPE) guaranteed him as per IDEA. 

As the Daily Dawg reported just yesterday, parents who have a legitimate claim for a denial of FAPE might be reimbursed for the private school tuition that they paid for. They might recover the cost of an independent evaluation. They might recover the attorney fees they paid to the lawyer who helped them. 

But reimbursement of school taxes???? C’mon—you can’t mean that! Everybody pays school taxes. You have to pay school taxes even if the school is ranked last in the county. You have to pay school taxes even if you have to keep your kids at home because the superintendent declared a “bad weather” day when the sun was shining with no snow on the ground. You have to pay school taxes even if the superintendent just got busted on Facebook for having an affair with one of the board members. You have to pay school taxes even when the football team is winless since 2015. There is no escaping school taxes.    

The court rejected the lawyer’s argument, and did so in the usual judicious, diplomatic manner. The court neglected to add: “Sheesh!”  Here at the Daily Dawg we are not so judicious or diplomatic.

And so the case of Moynihan v. West Chester Area School District, goes on the Dawg’s Sheesh-O-Meter.  It was decided by the 3^rd Circuit on March 4, 2022 with an “unpublished” opinion that can be found on Special Ed Connection at 80 IDELR 180.

DAWG BONE: GRIPING ABOUT IT IS PERFECTLY OK, BUT YOU HAVE TO PAY YOUR SCHOOL TAXES.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Imagine that parents have placed their child in a pricey private school and sought tuition reimbursement from the public school. The parents allege that the school has not been providing the FAPE (Free Appropriate Public Education) that the law mandates. Imagine that the parents are successful…up to a point. The court rules that the school did not provide the needed services during the 2018-19 school year, and that the problems persisted during the fall of 2019. But the court also ruled that in January, 2020 the school district revised the IEP and offered a program that would provide FAPE.  The parents turned it down, and kept the student in the private school. They think the public school has to continue to fund the private placement.

The school owes the parents some money for 2018-19 and for the first semester of the 2019-20 school year.  But is there any reason why the school should have to fund private schooling after the date it offered FAPE?  Shouldn’t the reimbursement order be cutoff as of January, 2020? 

I think so. So does the 1^st Circuit. The parents argued that the “stay put” rule required the public school to continue to pay for the private school as long as the appeals continued. The 1^st Circuit rejected that argument, and in doing so, cited the purposes of IDEA. To hold otherwise, the court noted:

….would put the school district on the hook for placement at a private school for the pendency of litigation.  IDEA litigation can be years long and, in that time, private school tuition can run in the hundreds of thousands of dollars….Not only does the plain language of Sections 1415(j) and 300.518(d) foreclose such a reading, but such an outcome is contrary to the IDEA’s purposes.  

It’s Mr. and Mrs. Doe v. Portland Public Schools, decided by the 1^st Circuit on March 29, 2022.  We found it on Special Ed Connection at 80 IDELR 207.

DAWG BONE: PUBLIC SCHOOL FINANCE IS A ZERO SUM GAME. OVER SPENDING ON ONE STUDENT MEANS UNDER SPENDING ON ANOTHER.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: one for the Sheesh-O-Meter.

The end of the school year often brings spirited disputes over GPA calculation.  After all, it matters. There is more than personal pride at stake. So let’s take a look at how Commissioner Morath dealt with a dispute in Brownsville ISD.

The fight was over two classes that the student took at St. Joseph’s Academy while in middle school.  When the student transferred to a BISD high school, the student was given credit for these two classes based on the determination that they were high school level classes. That sounds good, right? In most cases it would be, but this student was racking up a high GPA by taking Advanced Placement classes that carried higher weights. BISD gave the student credit for the middle school classes, but only ordinary credit. They were not given the additional weight that A.P. classes had. 

The parent complained of this, but the Commissioner found no fault with how the district handled it. The decision tells us that “school districts can count middle school classes in high school grade point average calculations.” Exactly how they are counted is not for T.E.A. to decide.  Key Quote:

Decisions about how grade point averages are calculated are issues left to school districts. 

The regulations do require that public schools have to verify the validity of a grade obtained in a private school, but leave the method of verification up to the public school:

The district may use a variety of methods to verify the content of courses for which a transfer student has earned credit. 19 T.A.C. 74.26(a)(2). 

Make note of the word “methods.”  It turned out to be important. 

BISD officials contacted St. Joseph’s “who then gave us the course number they utilized. So based on that we looked at our service ID number from the T.E.A. in order for us to input it and identify what course it applied to.” 

The Commissioner said this was good enough:

Respondent contacted the prior school and compared course numbers. Whether this is a good method, a bad method, or an indifferent method, it is a method.

And “a method” is all that is required. The case is Parent v. Brownsville ISD, decided by the Commissioner on April 21, 2022. It’s Docket No. 006-R10-10-2021.

DAWG BONE:  BUT TRY TO USE A “GOOD” METHOD.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: a common sense decision on “stay put.”

We like to end our Toolbox presentations with a quiz to reinforce some of the “takeaways” from the presentation. Here’s one of the questions:

Which Tool is the Most Important Tool?

A. Tool One: if it works, you can put the Toolbox away.
B. Tool Five: it's the principal's Tool, and principals need all the Tools they can get.
C. Tool Seven: because we enjoy talking about The FAPE-Free Zone.
D. Tool Eight: because it's the most complicated.

There is truth in all of those answers. But the correct answer is Tool One. Developing and implementing a BIP is the most important tool because it is the only Tool designed to improve student behavior. The rest are more about managing and coping.

As we reach the end of another lap around the track, here’s hoping you have a BIP in place for yourself this summer. Here’s hoping it includes some meaningful R&R.  It’s been a tough year, a third COVID year.  We continue to believe that all certified educators should get double TRS credit during COVID years, and we eagerly wait to see if Governor Abbott or Beto will embrace the idea. Who knows: it could swing the election.

DAWG BONE: TOOL ONE IS THE MOST IMPORTANT.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: got a GPA dispute?

Monday, May 23, 2022

What if it had been a New York Yankees flag?

Reading the Supreme Court’s decision in Shurtleff v. City of Boston the “what ifs” kept popping into my head. SCOTUS was unanimous in this one, holding that the City of Boston infringed on the free speech rights of a group that wanted to briefly fly a Christian flag on an 83-foot flagpole while they gathered on the Boston City Hall plaza. 

The city flies three flags in front of the City Hall every day—the U.S. flag, the Massachusetts flag and the City of Boston flag.  However, other groups are allowed to briefly raise another flag in place of the city flag.  From 2005 to 2017 there were about 50 groups that took advantage of this. Most of them raised flags representing their country of origin.  The Pride flag flew during Pride week.  Importantly, Boston had never turned down any group, and informed the public that it sought to “accommodate all applicants.” 

But when a group proposed raising what they described as “the Christian flag” the city balked, fearing that permitting this would be perceived as an endorsement of a religious group in violation of the Establishment Clause of the Constitution. 

The key to this decision is the Court’s conclusion that Boston was not “speaking” when it allowed   private groups to raise their flags on the plaza. This was private speech, not government speech, and Boston could not regulate the content. 

That seems fair. But I started to wonder about flags that would be more controversial. What if some group wanted to fly the New York Yankees flag—in the heart of Red Sox territory! It could be even worse than that. What if a group wanted to raise the Confederate flag?  What about a Nazi flag?  Surely, Boston would not want any such flag to be raised 83 feet high in front of the city hall.  How to prevent it? 

The Court provides a clue:

….the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech—though nothing prevents Boston from changing its policies going forward.  (Emphasis added). 

Not only that, the Court helpfully gave an example of how to avoid problems:

Boston could easily have done more to make clear that it wished to speak for itself by raising flags. Other cities’ flag-flying policies support our conclusion. The City of San Jose, California, for example, provides in writing that its “flagpoles are not intended to serve as a forum for free expression by the public.”

This kind of issue comes up in public school districts with regard to advertising in athletic venues, “donate-a-brick” campaigns and other activities that allow some degree of free expression.  You have to be thoughtful about those things, lest you fall into some embarrassing dilemmas. Lawyers can help you with that. The lawyers at Walsh Gallegos can do that, so let us know if you have questions.

This one is Shurtleff v. City of Boston, decided by the Supreme Court on May 2, 2022. It’s cited at 2022 WL 1295700.

DAWG BONE: NICE TO SEE SCOTUS UNITED ON A FEW THINGS.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: Toolbox Tuesday!!

LOYAL DAILY DAWG READERS: WE’RE ZOOMING THIS MORNING AT 10:00. HOPE YOU CAN JOIN ME AND MY PARTNER, CRAIG WOOD, FOR A LIVELY DISCUSSION OF KENNEDY v. BREMERTON SCHOOL DISTRICT, THE CASE OF THE PRAYING COACH.

I asked Craig Wood to join me on the Zoom call today for a reason. Craig has experience litigating cases involving the First Amendment and religious expression.  We will talk about the case now pending before the Supreme Court. We’ll talk about how superintendents, athletic directors and principals should be discussing this issue.  We might even venture predictions as to the outcome of the case, and what it portends for the future.

Zooming with the Dawg is free to all Loyal Daily Dawg Readers. If you are not yet signed up for it, send an email to info@wabsa.com. 

DAWG BONE: MAYBE THIS SESSION AT SCOTUS WILL BEGIN WITH “OREMUS” RATHER THAN “OYEZ.” 

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

We’re spending all week here at the Daily Dawg on Kennedy v. Bremerton School District a/ka/ The Case of the Praying Coach.  Yesterday I told you some of the facts of the case as set out by the federal district court.  Today: we take a look at the Circuit Court’s decision, which is the ruling that is now being reviewed by the Supreme Court.

One thing we learn from the 9^th Circuit Court’s decision is that the head coach in Bremerton resigned after 11 years with the district after all the controversy surrounding Coach Kennedy.  The head coach reported the time when “an adult who he had never seen before came up to his face and cursed him in a vile manner.”  The head coach had fears for his personal safety and “as a result of these concerns decided that he would resign.”

Before he did that he recommended that Coach Kennedy not be rehired for the next year.  Why?  Because he “failed to follow district policy” and “his actions demonstrated a lack of cooperation with administration.”  Moreover, his actions “contributed to negative relations between parents, students, community members, coaches and the school district” and he “failed to supervise student-athletes after games due to his interactions with the media and the community.”

If the Supreme Court concludes that those were the reasons that Kennedy was put on administrative leave and later not rehired, the school will win this case.  But the lawyers representing Coach Kennedy are trying to box the school into a simpler reason for the decisions.  That is: the school was trying to avoid the impression that it had endorsed Coach Kennedy’s prayers.  They repeatedly emphasized in oral argument the finding of the district court that “the risk of constitutional liability associated with Kennedy’s religious conduct was the ‘sole reason’ the District suspended him.”

Initially, Kennedy’s lawyers argued that his job duties ended when the game did, and thus he was a private citizen praying at the 50-yard line immediately after the game.  Every coach in America knows that that is not true.  Coaches are on duty until the locker room is clear and the kids have left.  So the lawyers backed off on that, but continued to portray this as a brief, quiet, private prayer.  Justice Gorsuch noted that a public school’s tolerance of a person’s private prayer does not mean that the government is endorsing religion.  But under the facts of this case Coach Kennedy was not just asking the school to tolerate his private religious expression.  He was asking the school to tolerate his open and public defiance of the superintendent’s directive.

The Circuit Court emphasized how Kennedy’s behavior was different from that of a teacher silently saying grace with bowed head before a meal in the school cafeteria.  That would be OK, but with regard to Kennedy the court said this:

At the outset, we address Kennedy’s repeated contention that the practice he sought to engage in was a brief, personal, and private prayer. While his prayer may have been brief, the facts in the record utterly belie his contention that the prayer was personal and private.

The Circuit Court concluded with this:

Kennedy’s attempts to draw nationwide attention to his challenge to BSD compels the conclusion that he was not engaging in private prayer, but was instead engaging in public speech of an overtly religious nature while performing his job duties. 

Will the Supreme Court see it that way?  Stay tuned!

DAWG BONE: SAYING GRACE IS OK AND PERHAPS AIDS DIGESTION.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: we’re Zooming!

In the oral argument before the Supreme Court in the Case of the Praying Coach, Justice Breyer expressed the view that maybe this case was not so much about the law as it is the facts. It’s a strange case—both sides have filed a Motion for Summary Judgment.  Both of those motions can be denied if the court concludes that there are important factual issues that are in dispute.  Let’s go back to the federal district court’s decision to see what it tells us about some of the key facts. 

TROUBLE BEGINS.  Coach Kennedy had been praying alone and with students long before it became an issue. The school first learned of his practices in September, 2015, when a coach from an opposing team informed the Bremerton High School principal that Kennedy had asked his team to join him on the field for a postgame prayer.  This prompted a visit from the A.D., who “expressed disapproval when Kennedy conducted a prayer on the field.”  The A.D. was right to do that.  It may have been OK for the coach to say his own prayer, but to invite the students to join him went too far and violated school policy.  Coach Kennedy’s responded to this on Facebook, posting that he might get fired for praying. So right from the start, Coach Kennedy went confrontational and public with a personnel issue.  

THE DIRECTIVE.  The district sent the coach a written directive that I am certain was reviewed by legal counsel.  It accurately reflects the state of the law in 2015. The coach was informed that he was free to “engage in religious activity, including prayer, so long as it does not interfere with job responsibilities.”  However, “student religious activity must be entirely and genuinely student-initiated, and may not be suggested, encouraged (or discouraged), or supervised by any District staff.”  He was told that if he prayed, the students “may not be allowed to join such activity.”

COMPLIANCE. THEN DEFIANCE.  Coach Kennedy complied with the directive for about a month. Then he lawyered up. The lawyers made the ludicrous claim that “his official duties as a coach have ceased” when the game ended.  Therefore, he was a private citizen when he went to the 50-yard line in his coach’s attire, knelt and said a prayer. If the students wanted to join him, they should be allowed to.  The lawyers informed the superintendent that Coach Kennedy would resume his midfield postgame prayer after the homecoming game on October 16. 

HOMECOMING.  The homecoming game was a media circus far out of proportion to the public interest in the Bremerton football game.  Coach Kennedy had orchestrated a media blitz to be sure that his conflict with the school administration would be well covered.  There were reports that band members and cheerleaders were knocked over as a swarm of people rushed to the 50-yard line to be with the coach for the prayer. 

AFTER THAT.  The school sent the coach another letter, informing him that his conduct at the homecoming game violated the previous directive, but offering to continue the “interactive process” of finding an acceptable accommodation of Coach Kennedy’s religious practices.  Coach Kennedy, perhaps emboldened by the nationwide support he was receiving, was not interested in any “interactive process.” He continued to defy the superintendent’s directive. Not surprisingly, the superintendent put him on paid administrative leave.

THE OTHER COACHES.  Coach Kennedy was an assistant coach at the high school level.  The head coach’s evaluation of Kennedy gave him high marks for his relationship with the players but “low marks for putting his own interests over those of the team.”  The A.D. viewed the situation the same way, praising Coach Kennedy’s coaching skills but criticizing “his lack of cooperation, noting that he ‘never came in after numerous requests and contacts.’”  The head coach resigned at the end of the year and the contracts of the six assistants, including Kennedy, expired. Coach Kennedy was one of four assistants who did not apply to be rehired. Instead, he sought a return to coaching via litigation. 

Since this case is now front and center in the Culture Wars, many of these facts are being downplayed or ignored.  It’s easier to portray this as the heavy hand of the state punishing a good Christian man who just wants to give thanks to God and set a good example for the students.  It fits nicely into the narrative being spread by the enemies of public education, that the schools are being run by godless Marxists trying to indoctrinate our children. 

I hope that my Daily Dawg posts will help Loyal DD Readers to understand that it’s more complicated than that.

DAWG BONE:  IT’S ALWAYS MORE COMPLICATED.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: the case goes to the Circuit Court

We like to address special education discipline issues here on Tuesday, thus highlighting The Toolbox. The Toolbox is a full day workshop that provides ten “tools” available to school administrators when dealing with disruptive and/or violent behavior from students with disabilities (SWD).  Today, we’re focusing on Tool #6: a Disciplinary Change of Placement.  Tool #6 usually results in a DAEP assignment.      

Texas law has required alternative education programs for the kids who commit serious offenses since 1995. That year our legislature mandated what were then called “AEPs”—Alternative Education Programs. With the proliferation of other “alternative” campuses it seemed logical to add the D to that designation. Thus we now have Disciplinary Alternative Education Programs—DAEPs. 

We have raised the standards for these programs since 1995.  A four-hour program supervised by a teacher’s aide will not suffice.  The Texas Administrative Code lays out detailed standards at 19 T.A.C. 103.1201.  That’s a fairly long regulation and we are not going to repeat the whole thing here. But we think those of you responsible for DAEPs should not only read the regulation. You should study it. 

For today, we are just going to highlight one provision in that regulation.  It requires “written contracts between students, parents or guardians, and the DAEP that formalize expectations and establish the students’ individual plans for success.” 

Are you doing that?  Notice that this contract for “individual” success is not limited to the students with disabilities.  This is required for each student at the DAEP.  But with the student with a disability, the ARDC should have some voice in the development of these individual plans.  Thus when using Tool #6, the student’s proposed change of placement will come to the ARDC. The ARDC must 1) conduct a manifestation determination; and 2) if the behavior of the student is not a manifestation of disability, make sure that the DAEP can provide appropriate services. Among other things, this should include making sure that the DAEP satisfies state standards.

That’s where the regulations come into play, and the written contract. So take a look at the regulations and be sure you are fully in compliance.  And if you are interested in Toolbox training, shoot me an email at jwalsh@wabsa.com. 

DAWG BONE: DON’T SKIMP ON THE DAEP.  MAKE IT A STRONG PROGRAM.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: some background on the Praying Coach