LOYAL DAILY DAWG READERS: WE’RE ZOOMING WITH THE DAWG THIS FRIDAY AT 10.  HOPE YOU CAN JOIN ME AND SPECIAL GUEST CRAIG WOOD FOR A LIVELY DISCUSSION OF THE CASE OF THE PRAYING COACH!

There are dozens of “amicus” briefs filed with the Supreme Court as it considers The Case of the Praying Coach.  Those briefs are from the usual suspects, making the usual arguments.  The atheists are against the coach, as is the ACLU. The Christians are split on the matter, some supporting the coach and some opposed.  Educational associations from teachers to administrators to school board members support the school district.  Lots of former pro football players and some noteworthy coaches support the coach. 

I found one amicus brief from a group that does not fit into the “usual suspects” category.  It’s from “Bremerton Community Members, BHS Football Team Alumnus, Parents, Community Leaders, and Educators.”  This group supports the school’s decision to restrict Coach Kennedy’s postgame prayers.  Why would they do that? Why would they be opposed to a man taking a few moments to privately and silently give thanks to God?

They would oppose it because that’s not how it happened. They submitted their brief “to provide context about how [Coach Kennedy] placed his rights above their own.”  Here are their own words:

Each Friday evening in the fall, these individuals gathered under the bright lights of the Bremerton High School football field to champion their beloved team, echo the fight songs of the cheerleaders, applaud the marching band’s halftime performance, and support the youth who make up their community’s future.  Though not the reigning state champions, the Bremerton football team was a symbol of the comradery that once lived in their small city, a community united in their differences. Where Bremerton High School is the arena, its football field is the stage.

[We] understand that a community is an ensemble cast; not a one man show.  It is a troupe of folks from all walks of life, brought together by their own unique faiths and beliefs.  When [Coach Kennedy] chose to center his own rights at mid-field of this once-celebrated community gathering [our] community united quickly became a community divided.

The brief then goes on to describe the situation from the perspective of several individuals. One of the players describes what happened at the homecoming game of his senior year:

“To this day, I don’t remember who we played or if we even won.  All I remember is the aftermath of that game.”  Before the players had the opportunity to shake hands, he remembered over 500 people “storming the football field…from both sides, hopping the fences and rushing to the field to be close to Kennedy before he started his prayer.”  The player felt “uncomfortable and unsafe” and “felt attention was shifted from our football team and focused toward Kennedy’s prayer circle.”

Of course it had. That’s because Coach Kennedy had riled up the public with a media blitz announcing that he intended to defy his employer’s directive and continue to take a knee and say a prayer at the 50-yard line right after the game.  The school had offered the coach numerous alternatives whereby he could exercise his right to pray without embroiling the school in litigation or controversy.  Coach Kennedy would have none of that.  He lawyered up, cut off negotiations with the school, surrounded himself with advocate groups that were itching for exactly this fight, and set the stage for the media circus at the homecoming game. Those 500 people who stormed the field were accompanied by TV and print reporters and a state legislator.  At the homecoming game.

So it’s not as simple as Coach Kennedy’s lawyers want to make it.  They claim that what Coach Kennedy did is no different from a coach silently making the Sign of the Cross at the start of the game. Surely, they argue, publicly employed teachers and coaches retain some measure of religious freedom. Surely, they can quietly, briefly, offer a prayer, even when they are on the job.

Now it is up to the Supreme Court to draw the line. There is a line—all sides agree to that. The First Amendment has a built in tension. It protects the free exercise of religion, while also prohibiting the government from creating an “establishment of religion.”  When the founders adopted the First Amendment they were not contemplating how that tension would play out in an athletic contest involving children at a publicly funded institution supervised by publicly funded employees. SCOTUS will draw the line when it issues its decision in this case. Because of the importance of this case, the Daily Dawg will devote all of this week (except for Toolbox Tuesday!) to The Case of the Praying Coach. 

DAWG BONE: THE FIRST AMENDMENT HAS BUILT IN TENSION. SCOTUS WILL HAVE TO DRAW A LINE FOR US.

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

Tomorrow:  we detour from the Case of the Praying Coach for Toolbox Tuesday!!

Sneak Preview, Loyal Daily Dawg Readers. We’re going to spend all of next week (except for Toolbox Tuesday) exploring the case of the coach who insisted on praying at the 50-yard line right after the game.  His case is now before the U.S. Supreme Court which heard almost two hours of oral argument on the matter on April 25.  The conventional wisdom is that the coach is going to win.  I agree with that assessment.  It’s likely that he will have at least five votes, and possibly two more.  Two of the justices are almost certain to rule for the school district.  Justices Roberts and Breyer are hard to predict.

Here’s my other prediction about this case.  One of the justices, either in the majority opinion or the dissent, will quote Matthew 6: 5-7:

And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others…..But when you pray, go into your room, close the door, and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you.

Coach Kennedy seems to have missed that instruction.  If he had prayed as Jesus instructed his followers to do, he would still be coaching in Bremerton, Washington.  Instead, he’s the plaintiff in a case that will likely shake up our understanding of how public schools deal with religions expression by their employees.

We’ll explore many facets of Kennedy v. Bremerton Public Schools next week, and then focus on it in our Zooming with the Dawg call next Friday. 

DAWG BONE:  IF YOU ENJOY THE CULTURE WARS, YOU HAVE TO ENJOY THIS CASE.

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

Suppose that your school district is found guilty of discriminating on the basis of disability in violation of Section 504.  Or on the basis of sex in violation of Title IX.  The injured party seeks relief for this act of discrimination, including monetary compensation for the emotional pain and suffering they endured. How much can they get?

Zero.  That’s the ruling of the Supreme Court in Cummings v. Premier Rehab Keller, P.L.L.C.  It’s a wonky opinion from Chief Justice Roberts analyzing what remedies are available in private suits based on statutes that are products of the Spendings Clause of the Constitution. That includes two of the federal statutes that schools deal with frequently—504 and Title IX.

The Spendings Clause operates kind of like a parent doling out access to the family car to a teenager. You want the car?  Here are the rules.  SCOTUS expects Congress to be a tough but fair parent—giving clear notice of what the rules are, and of what the consequences will be for violating the rules.

This was a case in which the plaintiff alleged that she suffered discrimination based on disability.  However, she suffered no physical injury.  Could she recover money damages for emotional harm?  SCOTUS said no by a 6-3 margin. When Congress passed Section 504 it did not make it clear to states, cities, school districts, and other recipients of federal funds that they could be charged with monetary penalties when people are emotionally injured due to an act of discrimination. 

Does this make a big difference?  No. Suits will continue, but the cost of settlement just dropped a bit.  The case was decided on April 28, 2022 and can be found at 2022 WL 1243658.

DAWG BONE: YOU DON’T HAVE TO WORRY ABOUT THIS IF YOU DON’T VIOLATE 504 OR TITLE IX. SO, LET’S TRY THAT!

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

Tomorrow: Kennedy v. Bremerton: The Case of the Praying Coach

At Walsh Gallegos we call them “The FAB Group.”  Is that because they are FABulous?  Well….they are FABulous but that’s not why we call them the FAB Group. These are the lawyers who deal with Facilities And Business—FAB.  If you are considering a bond issue, or already in the process of planning for construction, we have lawyers who can help. 

Next Wednesday we are offering a webinar that will highlight many of the complex legal issues that arise in the process of bond planning and construction. Here are the details:

DATE and TIME:  May 17, 10:00 a.m.

TOPIC: The Administrator’s Guide to Bond Planning and School Construction Projects

PRESENTERS: Stacy Castillo and Eddy Perez

How can you inform voters about the plans for bond proceeds without advocating for or against? When do you have to separate items on the election ballot?  How should you approach construction contracts? 

This will be an excellent introduction to the issues that you need to be thinking about.  Sign up at www.walshgallegos.com. 

DAWG BONE: BONDS AND CONSTRUCTION: WE CAN HELP.

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

Tomorrow: whittling away on 504 and Title IX….

Sometimes the universe conspires to deliver a message at exactly the right time.  This happened to me on April 27 as I was moderating the annual spring legal conference on special education law sponsored by ED311 and TCASE. Glancing at my phone during the lunch break I saw that the 5^th Circuit had issued two new decisions. That’s not unusual. They do that every day. 

But I saw that one of them involved a Texas school district!

And it was about special education!!

And the district was Comal ISD.  The conference was in New Braunfels—Comal County.  Holy Moly!!!

It turns out that H.W. v. Comal ISD is a Toolbox case.  It’s an illustration of how to use Tool #3. 

There are ten “tools” in the Toolbox.  Tool #3 is one of the more difficult tools to use. It’s an Educational Change of Placement Without Parent Consent.  It’s those last three words that tip you off to the complexity of using this tool. 

When would a school district use Tool #3?  In the Toolbox training we emphasize that the district has to be prepared to convince the hearing officer and/or court of three things: 1) the current placement is not working well for the student; 2) this is despite the best efforts of the school district over a lengthy period of time; and 3) we have something better to offer.  In this case, Comal ISD passed all three tests. 

The 5^th Circuit’s decision is mostly about LRE—least restrictive environment.  The parents opposed the change in placement because it moved the student to an MRE, a More Restrictive Environment.  The parents argued that this was not necessary or appropriate—the student was making progress in the current placement. It ain’t broke. Don’t fix it. 

Was that true? Was the student making progress?  The court noted the importance of this issue:

This leads to the critical question in this case: how should we measure H.W.’s “progress”?  Put another way, should we primarily rely on H.W.’s progress toward her IEP goals or instead look to her overall academic record when determining whether she is making appropriate progress?

The parents argued that progress on the IEP was the key.  If the student was achieving the majority of goals in the IEP, the student was making progress.  H.W. had mastered 11 of her 17 goals. Therefore, the argument went, she was making progress in the current placement and a move to a more restrictive setting was not called for. 

 The court described this as the “IEP-centric test,” and rejected it.  The court held that the proper measuring stick is “an overall academic record-based review.”  This should be a “fact-intensive, individualized, holistic” approach taking into account “test scores, percentile rankings, IEP progress reports, testimony from qualified professionals, and the like.”  Looking at all of that information the court concluded:

While H.W. undoubtedly mastered many of her IEP goals, she was still unable to make consistent and/or appropriate progress toward several of those goals in a general education setting.  The ARDC frequently reconvened to try and help her to meet her goals. It gradually increased the assistance offered to her. And it even lowered the mastery criteria with her parent’s consent—an implicit acknowledgement from H.W.’s parents that she was making inadequate progress.  Yet H.W. still struggled in many regards.

The court’s opinion includes many specific examples of how the district staff patiently and consistently worked with the student to maintain her in a less restrictive setting. It wasn’t working.  There were behavioral issues as well as academic concerns. 

This opinion would be a good thing to share with teachers and other direct service staff.  I suggest you have a professional development presentation in which the teachers read this opinion and make note of the good work done by the district staff over a long period time. That demonstrates a commitment to student success. In H.W. v. Comal ISD that commitment is recognized by the 5^th Circuit.  Congrats to the staff at Comal ISD and to Andrew Tatgenhorst (Thompson and Horton) who ably represented the district. 

The case was decided on April 27, 2022, by the 5^th Circuit.  It will be a “published” decision, meaning that it will be cited as binding precedent in future cases. In other words, this is a big deal. 

DAWG BONE:  USING TOOL THREE?  READ THIS OPINION FIRST.

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

Tomorrow:  our FAB Group…..

Fairfield ISD banned Ms. Walker-Nelms from district property for one year due to “an altercation on district property.”  Ms. Walker-Nelms promptly filed a grievance over this, but after it was denied by the superintendent, she was not as prompt in filing for an appeal to the board.     

District policy GF(Local) required that the appeal be filed within ten business day, and that it be done on the district’s form.  The superintendent reminded the grievant of this timeline twice.  The deadline for filing for an appeal was June 14, 2021.  The grievant filed her appeal on July 23^rd, more than a month late.   On that basis, the board denied her grievance and the Commissioner affirmed that decision. 

This sounds like a pretty routine matter. It’s well established that districts can enforce their timelines by denying grievances that are filed too late. But there is one aspect of this case that superintendents should think about.  Since this involved barring a person from being on campus it implicated T.E.C. 37.105. That statute requires some special notices and procedures when dealing with unruly people on campus.   You might want to think about opting out of that statute through your District of Innovation Plan.  That’s what Northwest ISD did in an earlier case and the Commissioner ruled that this was perfectly permissible. Key Quote:

The DOI specifically exempts Respondent from section 37.105 and provides, alternatively, that “[Respondent] would allow designated staff members the authority to remove parents or visitors whose behavior is deemed inappropriate without warning or written notice.”  Petitioner complains that Respondent’s trespass notice to him violated section 37.105 but does not dispute that Respondent is a District of Innovation exempt from section 37.105.  Because under its DOI plan, Respondent is exempt from section 37.105, Petitioner has not stated a potential violation by Respondent of section 37.105 for which he would be entitled to relief. In addition, the Commissioner lacks jurisdiction over an alleged violation of a school law of this state from which a DOI is exempt. Accordingly, this claim should be dismissed.

That’s Parent v. Northwest ISD which we reported in the Daily Dawg on October 27, 2021. This one is Walker-Nelms v. Fairfield ISD, decided by the Commissioner on April 26, 2022. It’s Docket No. 004-R10-09-2021.  I’m pleased to let you know that Haley Turner and David Holmes from our firm represented the district on this one. 

DAWG BONE: DOIs CAN MAKE LIFE SIMPLER.

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

Tomorrow:  Toolbox Tuesday!

Robert Boyd was terminated from his job as a maintenance worker in Canadian ISD based on something he posted on social media.  He did this at 10:30p.m.  He was not on the job, nor using a school computer.  His post was about the mysterious death of a popular high school student that has torn apart Canadian, Texas and surrounding areas.  Tom Brown, a high school senior, disappeared the day before Thanksgiving in 2016. His body was found in January, 2019, and to this day it is not clear what happened to him. That’s what Mr. Boyd posted about.  Certainly, this would qualify as a “matter of public concern.”  Mr. Boyd sued the district, alleging that his termination was a violation of his right to free speech, protected by the 1^st Amendment.

The court dismissed his suit.  It’s true that the 1^st Amendment protects school employees when they speak “as a citizen” commenting on “matters of public concern.”  But even when that is the case, the court has to explore a second issue: “The second step of the inquiry requires determining whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” 

Citing the Supreme Court, the court in Mr. Boyd’s case described the school district’s legitimate interests:

[The district] has a clear interest in (1) maintaining harmony among its co-workers, (2) guarding close working relationships for which personal loyalty and confidence are necessary (not just relationships among co-workers, but also relationships between students/families and [the district’s] employee, and (3) ensuring normal operations in the provision of the District’s educational services.

The problem with Mr. Boyd’s social media post was that it cast suspicion onto Thomas Brown’s mother and her husband.  Thomas Brown’s mother was a teacher in the district.  The court concluded that there was no way that Mr. Boyd’s right to speak out on matters “outweighed [CISD’s] legitimate interests in promoting harmony amongst its employees, close working relationships within the district, and the continued operations of its educational services.” 

It’s Boyd v. Canadian ISD, decided by the federal court for the Northern District of Texas based on a Report and Recommendation from the magistrate issued on February 17, 2022 that can be found at 2022 WL 837933.

DAWG BONE: STILL NO RESOLUTION OF THIS MYSTERY, BUT THIS CHAPTER OF IT IS CLOSED.

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

Yesterday I told you about a case from Mississippi that provides a lesson on the importance of documentation.  The case holds another lesson also.  The federal court admonished the hearing officer for ignoring a phrase that the Supreme Court used in the Endrew F. case.  In that case the Court said that every student’s goals should be “appropriately ambitious.” 

The words “appropriately ambitious” from the Endrew F. case are what the lawyers call “dicta.” They do not represent the “holding” of the court. The holding is more important than the dicta. Lawyers who represent school districts need to make this distinction, to highlight that the 5^th Circuit has repeatedly and emphatically “held” that Endrew F. does not require a change in the four-part test the 5^th Circuit has relied on for decades. There is nothing in the four-part test about how ambitious an IEP should be.

But for educators, this case illustrates that “dicta” can get carried over into subsequent cases to the point that it becomes part of the conventional wisdom.  Rightly so.  Distinctions between “dicta” and the court’s “holding” are for lawyers to make if and when a case goes to court. For people sitting at the table for an ARD meeting, “appropriately ambitious” is an excellent standard.

Educators should always aim for an IEP that is “appropriately ambitious.”  Obviously, that term has to take into account the unique circumstances of the particular student the Team is planning for.  “Appropriately ambitious” is a Goldilocks standard to be applied to each individual student—not too easy, not too hard. Just right.

The term “appropriately ambitious” should come up in ARD meetings when the group is considering the annual goals.  After the ARD has established the present levels, and proposed a measurable annual goal, the question should be posed: “Is this goal appropriately ambitious for this student?”

Once there is agreement on the goals, the ARD can then discuss and decide what instructional and related services are necessary for the student to achieve the “appropriately ambitious” goals.

This gift from Mississippi is M.W. v. Rankin County Public Schools District, decided by the federal court for the Southern District of Mississippi on January 5, 2022.  It’s published in Special Ed Connection at 80 IDELR 136. 

DAWG BONE: NOT TOO HIGH; NOT TWO LOW; APPROPRIATELY AMBITIOUS. 

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

Tomorrow: a Panhandle mystery

Have you ever heard someone, maybe a lawyer, make that statement?  A recent case from Mississippi illustrates how some courts do indeed look at it that way.  The lack of documentation supported the court’s ruling that the district failed in its Child Find duty. 

What Happened?  Screening during kindergarten showed that the student showed signs of dyslexia, but there was no follow up to that.  Nor did the district inform the parent of the screening results. The district claimed that the student was screened again in first grade, with a more positive result—no signs of dyslexia. However, there was no documentation of this.  None.

There were other factors that the court cited, but for today, let’s just focus on the failure of the district to make and maintain a record of the student’s success on a dyslexia screener.  The court completely disregarded the school’s contention that this ever happened.  There was no documentation.  Therefore, it didn’t happen. 

Consider the possibility that there are two explanations for what happened here: either it happened just like the court thinks it did—there was no screening done in first grade. Or maybe the district did screen the student in first grade, but failed to make note of it.  Either way, the result is the same. Thus the court truly takes the approach that “if you didn’t document it, I don’t believe you did it.”  The lesson is obvious.

It's M.W. v. Rankin County Public Schools District, decided by the federal court for the Southern District of Mississippi on January 5, 2022.  It’s published at 80 IDELR 136 (S.D. Miss. 2022).

DAWG BONE: DOCUMENT.  DOCUMENT.  DOCUMENT. RINSE AND REPEAT.

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

Tomorrow: what does Goldilocks have to do with special education?

We’re nearing the end of the school year and I suspect there are a lot of annual ARD meetings being held.  In the Toolbox Training our firm offers we discuss one of the questions that is embedded in your forms, the question that has to be asked at every annual ARD: “Does the student have behaviors that impede the learning of the student or others?”  I’ll bet your forms have a YES and a NO box after that.  Today, let me offer a few reminders about that question.

First, notice that it does not ask if the behaviors are in any way connected with the student’s disability. That question may come up later if you have to make a manifestation determination, but it’s not relevant here.  The question is simpler: do we see behaviors that are impeding educational progress?

Second, remember that if you check the YES box, you need to then consider how to address the issue. There are many ways to address behavioral issues.  Checking the YES box does not automatically entitle the student to a BIP. But it does require consideration and documentation of what the ARD members considered. 

Third, when you check the YES box and then identify the specific behaviors of concern, this does not mean that the behaviors are a manifestation of disability. Sometimes campus behavior coordinators are fearful that checking “YES” will box them in later in the year if an MDR is necessary. Not so.  As we stated two paragraphs above, checking the YES box only means that there are behaviors that impede learning.  They may or may not be caused by the student’s disability.

In our firm’s Toolbox Training we discuss this in detail, and offer some language designed to make the process more easily understood by everyone.  Let me know if you are interested in a Toolbox Training. 

DAWG BONE:  JUST ANSWER THE QUESTION AS IT IS WRITTEN.

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

Tomorrow: an old lesson from a new case…