We’re Zooming with the Dawg this Friday at 10—hope to see you there.  My partner, Katie Payne, will be joining me as we discuss the controversy over removing books from the library.  In fact this will be the subject of all of the Daily Dawgs this week.  Zooming with the Dawg is free to all Loyal Daily Dawg subscribers: see you Friday!

What happened in Island Trees, New York in 1976 may sound eerily familiar and current.  A group of school board members attended a conference of a politically conservative group of New York parents. There they received a list of books that some described as “improper fare for school students.”  The board then gave the superintendent an “unofficial direction” to have any of the books that were on the list removed from the school library and delivered to the board members for review. 

The superintendent responded to this by reminding the board that the district had a policy “designed expressly to handle such problems.”  It called for the superintendent to appoint a committee to review the books and make a recommendation.  The superintendent expressed support for the existing policy, noting that “I think it can be followed quietly and in such a way as to reduce, perhaps avoid, the public furor which has always attended such issues in the past.” 

Nope. The board wanted the books pulled.  The “public furor” predicted by the superintendent came to pass, and it took the matter all the way to the Supreme Court.

It turns out there was a committee review, but the members were appointed by the board, not the superintendent.  The committee consisted of four parents and four staff members.  Here is the recommendation of the committee for each of the 11 books on the list:

Slaughter House Five, by Kurt Vonnegut: RETAIN, BUT REQUIRE PARENT APPROVAL.

The Naked Ape, by Desmond Morris: REMOVE.

Down These Mean Streets, by Piri Thomas: REMOVE.

Best Short Stories of Negro Writers, edited by Langston Hughes: RETAIN.

Go Ask Alice, Anonymous: RETAIN.

Laughing Boy, by Oliver LaFarge: RETAIN.

Black Boy, by Richard Wright: RETAIN.

A Hero Ain’t Nothin’ But a Sandwich, by Alice Childress: NO CONSENSUS.

Soul on Ice, by Eldridge Cleaver: NO CONSENSUS.

A Reader for Writers edited by Jerome Archer: NO CONSENSUS.

The Fixer by Bernard Malamud. RETAIN.

Just as the board ignored the superintendent’s recommendation, it also rejected the committee’s decision. The board was OK with one book: Laughing Boy, and permitted Black Boy to be available with parental approval. The other nine were to be removed.

Four high school students and one junior high student sued, alleging that the board had ordered removal of books “because particular passages in the books offended their social, political and moral tastes and not because the books, taken as a whole, were lacking in educational value.”  The students lost at the district court level; won at the Circuit Court level; and at the Supreme Court….well….it got complicated there.

That’s the background to the only SCOTUS decision directly addressing the authority of school officials to remove books from a school library.  It’s Board of Education of Island Trees Union Free School District No. 26 v. Pico, 102 S.Ct. 2799 (1982). 

I am going to devote all of the Daily Dawg entries for this week to this issue. This means that tomorrow’s entry will not be “Toolbox Tuesday” as it normally is. We will resume with Toolbox Tuesday, covering special education discipline, next week.   So tomorrow I’ll tell you about the Supreme Court’s ruling in the Island Trees case.  Wednesday we’ll look at a later case generated by our neighbors to the east in Louisiana decided by the 5^th  Circuit. Thursday we’ll take a look at a case from the 11th Circuit.  And Friday we’ll wrap up this discussion.

DAWG BONE:  REMOVING BOOKS?  HAPPENED BEFORE.

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

Tomorrow: The Pico case goes to the Supreme Court.

Today’s court case begins with what a 16-year old boy from Pennsylvania posted on Snapchat “while at an Easter Sunday celebration with his extended family in New Jersey.”  Here’s the post:

Everyone, I despise everyone!  F___ you, eat s___, blackout, the world is a graveyard! All of you, I will f___ing kill off all of you! This is me, this is my, snap!

On Easter Sunday!! We can only hope that the rest of the extended family was hunting for Easter eggs while singing “He Lives!” 

By now, I’m sure that Loyal Daily Dawg  Readers can predict what happened next.  Cops showed up at his house.  The kid was arrested and charged, had his phone confiscated, was sent to juvie, subjected to a psychological  exam, and, oh, by the way, expelled from school. Expelled. 

Things did not go well for the school when the case went to court.  The psychologist reported that the student was no threat. It turned out that what he posted were the lyrics of a song by Spite, which is yet another punk rock band that I’m pleased to have never heard of.  As in the case I told you about yesterday, the school was unable to convince the court that whatever disruption occurred was attributable to the student.  

The court noted that there was a major impact on the school, particularly after the superintendent notified the entire community that a threat had been made. This was based on the limited information that the superintendent had at the time. The next day, predictably, 25 % of the students did not show up, and the others were described as “anxious and upset.”  None of that convinced the court that the student should be expelled.  Key Quotes:

Though G.S.’s post sparked a chain of events that undoubtedly led to the disruption of normal operations at Penncrest, and resulted in communal agitation and fear, we nevertheless conclude that his post was constitutionally protected speech for which the school could not punish him.

Public schools may certainly take appropriate, good faith steps to protect their communities in fluid situations where it is unclear whether a student’s off-campus speech indicates genuinely harmful intent, as neither the First Amendment nor [a provision in the state constitution] require that they sit on their proverbial hands until a potential threat comes into actual fruition.  However, where a student’s properly contextualized, off-campus speech is not distinctly connected to school activities or clearly directed towards members of their educational community, a public school’s reach exceeds its constitutional grasp if it seeks to punish that student for any disruption to normal school operations that results from that speech.  

The courts always have the benefit of hindsight, which school administrators don’t have.  With that perfect 20/20 hindsight, it does look like the school overreacted. But what if this student had turned out to be the next school shooter?  If this Snapchat post had surfaced (and it would) the school would be blamed for not taking it seriously.

I wonder if the case would have come out differently if the school had only suspended the student for a short time to investigate. That’s the type of action taken in “fluid situations” that the court seems to be OK with. Once they had the report of the psychologist that the student posed no threat, they could have backed off on the long term discipline. 

Lessons learned the hard way. This one is G.S. v. Rose Tree Media School District, decided by the Commonwealth Court of Pennsylvania on January 7, 2022.  I found it at 2022 WL 67262.

DAWG BONE:  THERE WAS DISRUPTION….BUT WHOSE FAULT WAS THAT?

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

Today we continue our discussion of the case where a student posted a video on Snapchat depicting another student as a singer expressing an intent to kill, tie up, and eat other students. You read that right.  When confronted about this, the student pointed out that what he posted was lifted from lyrics by a popular band, Cannibal Corpse.  It was all a joke. He didn’t mean anything by it.

The school did not see the humor. It expelled the student, based on the student making a “true threat” and disrupting school by engaging in cyberbullying.  Yesterday we explained why the Supreme Court of Pennsylvania concluded that this was not a “true threat” and therefore, was constitutionally protected free speech.  Today, we turn our attention to the other issue: did the student’s action cause a material and substantial disruption of school?

There certainly was a reaction at the school, but the court did not think it met the “material and substantial” standard. The school reported the incident to the police, who promptly investigated and concluded that there was no threat.  Hearing that, the superintendent sent an email to all parents, informing them that there had been a threat on social media, but it had been investigated, dealt with, and there was no further concern over safety.    

That’s what any good superintendent would do, right?  Maybe so. But the Supreme Court of Pennsylvania had an interesting take on this:

While J.S.’s memes no doubt impacted the school environment to some degree, we do not believe that they rose to the level of a substantial disruption required by Tinker.  Initially, we note that the School District responsibly investigated the possibility of a threat by immediately contacting the police.  Upon receipt of law enforcement’s investigation and conclusions that J.S. did not present a threat and that it was safe to attend school the next day, however, IT WAS THE SCHOOL DISTRICT THAT CREATED A DISRUPTION BY SENDING AN EMAIL TO PARENTS THAT A THREAT HAD BEEN RECEIVED.  With respect to the students at school, the interruption was relatively minor….Importantly, there is no allegation that school was missed, classes or instruction interrupted, or the operation of the school was compromised. (Emphasis added).

So whatever disruption occurred was caused by the superintendent…not the student.  But imagine the blowback the superintendent would have faced had he not sent that email. 

Concerned Parent: “Do you mean to tell me that a student made a threat on social media and you didn’t even tell us about it?”

Cases like this engender that “damned if I do, damned if I don’t” attitude. But let’s add some context that might help.  It’s unlikely that the court would have been troubled by a short suspension to give the school time to investigate. This kid, however, was “permanently expelled.” I don’t know what “permanently” means in Pennsylvania, but it sounds pretty long.  Having imposed such a harsh penalty on the student, the school imposed on itself the burden of proving that the student’s meme was either a “true threat” or caused a major disruption of school.  The school failed both tests. 

The other point I would make is that sometimes state law requires a report to the community.  What if this had happened in Texas?  Would the superintendent be required to inform parents?

I don’t think so.  We do have a statute (T.E.C. 37.113) that requires a notification to parents if the school receives “a bomb threat or terroristic threat relating to a campus or other district facility at which students are present.”  What happened in this case, however, was not a “bomb threat” and it also fell short of a “terroristic threat” due to the lack of harmful intent. 

This colorful and interesting case is  J.S. v. Manheim Township School District, decided by the Supreme Court of Pennsylvania  on November 17, 2021.

Tomorrow we’ll tell you about another Pennsylvania case that went against the district.

DAWG BONE: SOMETIMES IT’S WISE TO BACK OFF ON LONG TERM DISCIPLINARY ACTION WHEN YOU KNOW ALL THE FACTS.

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

Tomorrow: a Snapchat snap about a song called Snap by a group called Spite.

For the remainder of this week I’m going to tell you about two student discipline cases from Pennsylvania that were overturned by the courts. There are lessons to be learned. First, let’s focus on what is and is not a “true threat.” 

The fact of this case reminded me of the common parlor game: “what was the first concert you attended?”  I’m pleased to report that my answer to that question is Peter, Paul and Mary in Tulsa, Oklahoma approximately 1963.  The edgiest part of that concert was “Puff, the Magic Dragon” because….well… you know, it wasn’t really about a magic dragon. 

Things are a lot edgier today.   Somewhere in America today there is a kid whose answer to the “first concert” question is going to be “Cannibal Corpse.”   I had not heard of this group until it came up in the case I’m about to tell you about.  Turns out the group has been around since 1988 and has produced 15 studio albums, two box sets, four video albums and two live albums.   They’ve had a good bit of success with album titles like “The Wretched  Spawn,” “Gore Obsessed” and “Violence Unimagined.”  I much prefer “Where Have All the Flowers Gone?”

So two boys in Pennsylvania were Snapchatting over a period of ten days.  Some of this involved mocking another student and joking about the possibility that he would be a school shooter because he liked Cannibal Corpse.  The Snap that caused all the hoopla (and litigation) was a meme video sent by J.S. (aka “the plaintiff”) in which the other boy was captioned as planning to kill other students, tie them up and eat them.  Whoa.  The court noted that this kind of talk was similar to the lyrics of some Cannibal Corpse songs. What else would you expect with a name like that?

All of this was off-campus activity.  The video was posted on Snapchat for all of five minutes, and seen by no more than 40 other kids, but that was enough time for it to come to the attention of the school.  Cops showed up at the home of the soon-to-be plaintiff early the next morning.  After interviewing J.S. and his parents, they reported to the school that there was no threat. No criminal charges were filed, but the school expelled J.S. for making a terroristic threat and cyberbullying. 

That disciplinary decision was overturned by the  Pennsylvania Supreme Court.  The court noted that a “true threat” is not protected by the First Amendment, but this “mean-spirited, sophomoric, inartful, misguided and crude” posting on Snapchat was not a “true threat.” The court held that “the primary focus” in determining if words amount to a “true threat” should be the “subjective intent of the speaker.” You have to consider “the totality of the circumstances” and for students, this includes “the student’s age, maturity, and lack of judgment.”  

Thus the video meme referencing Cannibal Corpse was not intended to threaten anyone and did not amount to a “true threat.” Since all of this Snapchatting happened away from school, on the boys’ personal devices, and was not a “true threat” it was protected free speech under the First Amendment and the school goofed by expelling the student. 

That is, unless the school could show that the Snapchat video caused a material and substantial disruption of school.  The court addressed that issue also. Come back tomorrow for that!

This is J.S. v. Manheim Township School District, decided by the Supreme Court of Pennsylvania  on November 17, 2021.

DAWG BONE: WAS IT A “TRUE THREAT”?  FOCUS ON WHAT THE SPEAKER TRULY INTENDED.

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

Tomorrow: the court  second guesses the superintendent.

Fundamental rule in student discipline: comply with your Code of Conduct.  I came across a case from New Jersey where they must have a really hard core Code of Conduct.  The school put the student in an alternative setting for the remainder of the school year based on the student’s possession of a small pocket knife and some alcohol.  How would your district handle that? 

The New Jersey case is a good illustration of the use of two of the tools in the Toolbox.  Since the knife had a blade of three inches, it qualified as a “dangerous weapon.” This means the school can use Tool #5—a Removal Due to Special Circumstances.  That removal could be for as many as 45 school days.  Note: the school can use Tool #5.  It doesn’t have to.

The tough guys in Jersey wanted to use Tool #5, and in fact, to go even further. So they also used Tool #6—a Disciplinary Change of Placement—to justify the removal for the rest of the year.  This is only available when the behavior is not a manifestation of disability.

When I do my Toolbox workshops I often ask principals what penalty would be imposed on a student who had possession of a small pocket knife at school.  Typically they tell me that if the student did not use or threaten to use the knife, the penalty would be very minor. 

Principals should not get carried away with Tool #5.  It is the principal’s tool and the law authorizes a removal for up to 45 school days. But first, you should determine what your Code of Conduct says, and how your district has handled similar situations in the past.  So we should be careful when we say that Tool #5 authorizes principals to remove kids for up to 45 school days. A more accurate statement would be: The principal can remove the student for a period of time consistent with the Code of Conduct, not to exceed 45 school days.

The case is Ocean Township Board of Education v. E.R., decided by the federal court in New Jersey in 2014. We found it at 63 IDELR 16.

DAWG BONE: ASSISTANT PRINCIPALS SHOULD SLEEP WITH THE CODE OF CONDUCT UNDER THE PILLOW. 

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

Tomorrow: have you heard of Cannibal Corpse?

Are you signed up for our firm’s annual HR Symposium?  It’s coming up next week—Tuesday the 15^th.  The focus this year will be on the many legal issues that arise in the hiring process.  This year when we have so many vacancies we are doing a lot of hiring. This is not the time to get sloppy about that process. So I hope you will sign up for this year’s Symposium. It’s all happening on Zoom. Sign up at www.walshgallegos.com. 

Now, for today’s Daily Dawg content…..

It was a brutal football season for us Longhorn fans last year.  Many of the games followed the same pattern.  The Horns played well in the first half, and often for three of the four quarters, only to squander the lead in the fourth quarter.  It turns out that winning three of the four quarters counts for squat. It’s only the final score that matters. 

This came to mind for me as I read Lamar CISD v. J.T.  This is a special education case in which the court ruled in favor of the district, thus overturning the decision of the special education due process hearing officer.  The main issue in the case was about whether or not the district had provided J.T. with a meaningful educational benefit during the 2018-19 school year.  In working with J.T. that year LCISD was a lot like the Longhorns, only in reverse: a bad first half, but a strong second half.    

During that first half—the fall semester--the court recounted at least five incidents in which J.T.’s teacher “responded inappropriately.”  This included throwing the boy’s shoes across the room, kicking him in the shin, shoving him to the ground and pushing him from a ball chair onto the floor.  The teacher, who was new to the district, resigned at the end of that semester.

When the mother saw the video of one of these incidents she pulled J.T. out of school. For the rest of the year, the school served J.T. by ratcheting up homebound services. The ARD Committee also agreed to provide OT, personal care services, ABA therapy, adaptive PE, and to make up for any lost speech therapy by the end of the year. Moreover, the district agreed to pay for six months of private counseling sessions for J.T.

The mother was complimentary of the homebound teacher, noting that the teacher “has gone above and beyond to make sure that J.T. progresses.”  That hard work paid off.  The student mastered his IEP goals in English, math, science, social studies and behavior.  He showed improvement on the STAAR, doing “exceptionally well on the Biology STAAR” while passing Algebra I and failing English/Language Arts by “only a few questions.”

To return to our football game analogy, what we have here is a lousy first half for the district but a whole ‘nother ballgame in the second half.   By the end of the year, the district could claim victory.  But do we measure educational benefit semester by semester? Or by the year as a whole?  Does the score at halftime matter?

The court held that it’s only the final score that counts.  (Note: the court did not put it in those words.  What a missed opportunity!)   The court held that we look at academic progress over the scope of the entire year.  After all, IEPs do not contain weekly, monthly or by-the-semester goals. They contain “annual” goals. 

So as we trudge along in this difficult year, remember that it’s not too late to improve services to students. It’s not too late in the year for students to make good progress. 

This one is Lamar CISD v. J.T., decided by the federal court for the Southern District of Texas on December 31, 2021.  It was reported on Special Ed Connection at 122 LRP 33. 

DAWG BONE: IN SPECIAL ED, JUST LIKE IN FOOTBALL, IT’S ONLY THE FINAL SCORE THAT MATTERS.

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

Tomorrow: Toolbox Tuesday!!

The Daily Dawg reports many cases in which someone obtains a court order to get reimbursed for their attorneys’ fees.  Almost all of those cases involve the plaintiff recovering from the defendant.  So it is rare to find a case where the court orders the plaintiff to reimburse the defendant for attorneys’ fees expended. It’s even more rare when the court orders the lawyer who represented the plaintiff to chip in.  But that’s what happened in Lewisville ISD. 

The case was a challenge to LISD’s at-large voting system, alleging that it deprived racial minorities of having an equal shot at representation on the school board.  So you would think that a suit like that would be filed by a person who is a member of one of those racial minorities.  Usually such suits are.   But in this case the plaintiff was a white male. 

This was important. It’s not that white males cannot file suits under our Civil Rights laws. They can. But nobody can file a lawsuit unless they allege that they have personally suffered some “injury in fact.”  This is fundamental. You can’t file a lawsuit alleging that somebody else has been injured.  There are a few exceptions to that general rule, such as when a parent is authorized to file on behalf of a child, but no exceptions applied here.  So here we have a white person alleging that the voting system is illegal because….because it favors white people.  See the problem?

The district filed a motion to dismiss, arguing that the plaintiff had not even alleged any injury that he had suffered, and thus he lacked “standing.”  The court agreed and tossed the case out.  Then the district sought its attorneys’ fees. 

Now that is a steep hill to climb. It’s not enough to show that the court ruled in your favor.  You also have to convince the court that this suit was “frivolous, unreasonable, or groundless.”  To make the lawyer responsible for the fees you have to provide “clear and convincing evidence” of “bad faith, improper motive, or reckless disregard of the duty owed to the court.” 

The court held that the district satisfied both of those standards and ordered the plaintiff and the law firm, Brewer Storefront, PLLC, to pony up $49,498.25 to reimburse LISD for fees expended.

In its defense, the law firm pointed out that it had successfully pursued cases under the Voting Rights Act like this one. That didn’t help them. Key Quote:

This assertion only provides further support for the Court’s finding that these experienced attorneys knew or should have known that [the plaintiff] had no standing to pursue his case.

The court also cited the manner in which the lawyers pursued the case, noting the four depositions “all of which lasted seven hours. And during these lengthy depositions, [the plaintiff’s] attorneys regularly strayed far afield from topics relevant to a voting rights case.

Our law firm handled this case for LISD and I think it provides an excellent example of how we at Walsh Gallegos strive to “help the people who help the kids.”  Kudos to my partners, Meredith Walker, Craig Wood and Christine Badillo for the good advocacy that obtained this result. It’s Vaughan v. Lewisville ISD, decided by the federal court for the Eastern District of Texas on December 28, 2021.

DAWG BONE: YOU WEREN’T HURT?  STAY OUT OF THE COURTHOUSE.

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

Today we offer some background on the case featured in yesterday’s Daily Dawg. The Supreme Court has decided to hear the case involving a football coach who was ordered to cease his practice of kneeling at the 50 yard line after the final gun to say a prayer. Here is a re-print of the first mention of this case in the Daily Dawg:

Friday, September 1, 2017

Just in time for football: court tells coach to quit praying on the field

High school football.  A praying coach. And the law.  This gives us all the ingredients we need for a made for TV-movie, or a good court case.  It brings out the culture warriors in droves. So let us take a moment to reflect on Kennedy v. Bremerton School District.

Coach Kennedy liked to say a prayer after the football game. He liked to do it smack dab on the 50-yard line. Lots of players joined him. 

This went on for quite a while, but eventually someone complained to a school administrator.  This led to an exchange of lawyerly crafted correspondence between superintendent and coach.  The message to the coach was plain: Coach—you can’t do this anymore.  Here’s my favorite part of the court’s lengthy opinion:

Kennedy’s legal representatives responded to the District’s letter by informing the media that the only acceptable outcome would be for the District to permit Kennedy to pray on the 50-yard line immediately after games.

Hmmmm. How do you suppose the superintendent felt about that?

The Coach eventually sought an injunction to permit him to continue to pray. The court denied it. He appealed to the 9^th Circuit, which has now ruled against him as well.  The court held that Coach Kennedy was not “speaking as a citizen” when he prayed. He was speaking as a school employee:

…by kneeling and praying on the 50-yard line immediately after games while in view of students and parents, Kennedy was sending a message about what he values as a coach, what the District considers appropriate behavior, and what students should believe, or how they ought to behave. Because such demonstrative communication fell within the scope of Kennedy’s professional obligations, the constitutional significance of Kennedy’s job responsibilities is plain—he spoke as a public employee, not as a private citizen, and his speech was therefore unprotected.

The court spelled out the many ways in which Coach Kennedy could practice his religion and then added:

What he cannot do is claim the First Amendment’s protection…when he kneels and prays on the 50-yard line immediately after games in school logoed attire in view of students and parents.

In support of its decision, the 9^th Circuit cited cases that came to the same conclusion in similar circumstances from the 3^rd, 6^th, 7^th and 5^th Circuits. The 5^th Circuit case is Doe v. Duncanville, 70 F.3d 402 (5^th Cir. 1995). 

You might want to let your coaches know about these decisions. The trend line is pretty clear.  This one was decided by the 9^th Circuit on August 23, 2017. 

DAWG BONE: ALWAYS ASK YOURSELF: WHAT WOULD COACH TAYLOR DO?

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

Tomorrow: Lewisville ISD recovers attorneys’ fees….

If your subscription to the Daily Dawg goes all the way back to 2017 you might remember the first time I told you about the case involving the football coach who liked to take a knee at the 50-yard line right after the game ended.  There, joined by many players on both teams, he said a prayer.  After someone objected to this practice, the superintendent told the coach that he had to say his prayer somewhere else.  Well, guess what?  The Supreme Court is going to hear this one.  Get your popcorn!

I think I know how this one will come out. SCOTUS has extended the notion of religious liberty in several recent cases, some of them dealing with Covid-related restrictions on religious gatherings.  There are at least four justices chomping at the bit to rule in favor of Coach Kennedy.  I’m pretty sure the coach will garner at least one, and possibly two more votes in his favor.  I don’t expect the Supremes to open the door to a daily practice of a school employee reciting  The Lord’s Prayer or reading from the Bible over the P.A. every day.  I expect the cases from the 1960s that established those restrictions will survive.  But this case is different. It’s about the individual religious choice of a single person. Yes, he was “on the job” and served as a representative of the school district.  Yes, his very conspicuous choice of location and timing sent a message to his players about his religious views.  It’s not surprising that a lot of players chose to join in—but no one was forced to do so. 

It will be very interesting to see how the Court decides this one.  It is likely to mark a significant change in how school administrators can thread the needle in the Constitution—the needle that requires that public schools allow the free exercise of religion while not endorsing those exercises. A ruling against the school district might be welcomed by many school superintendents if it offers us clearer guidance on what is allowed and what is not.  Right now, school superintendents and board members are caught in the middle of the culture war over issues like this.  If you let the coach pray, you risk a lawsuit from a group like the Freedom From Religion Foundation.  If you don’t allow the coach to pray, you risk a lawsuit from the coach, and condemnation from the pulpit. 

Tomorrow I’m going to republish the Daily Dawg from September 1, 2017 to give you a bit more background on the case of Kennedy v. Bremerton School District.

DAWG BONE: MAYBE WE WILL GET SOME CLARITY ABOUT A VERY MURKY AREA OF THE LAW.

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

Tomorrow: how the praying coach case began…

We highlight The Toolbox on Tuesdays around here. The Toolbox is an all-day program for campus administrators and special education staff. It’s all about the ten “tools” that you can use to appropriately serve students with disabilities who may be seriously disruptive or even violent.

Some of those students will commit offenses that are listed in Chapter 37 as expellable. In fact, some of those offenses are “mandatory expellable” offenses. What does that mean for a student in your special education program?

Three key points:  First, there is no such thing as “expulsion” for such a student in the traditional sense of the word “expulsion.” That word typically denotes a cessation of services of any kind for a significant period of time.  Under federal law, states must make FAPE—Free Appropriate Public Education—available to all children from 3 to 21 “including children with disabilities who have been suspended or expelled from school, as provided for in Section 300.530(d).”  Since federal law overrides state law, this means that there is no “expulsion to the street.”  The student with a disability who commits a mandatory expellable offense must still be served. FAPE must be available. 

Second, the ARD Committee is the group that decides exactly how that will happen.  Texas is fortunate in that we already have DAEPs and, in our larger counties, JJAEPs that can normally provide the services that “expelled” students need.  But decisions about exactly where and how a student will continue to receive services must be decided by the ARDC on a case-by-case basis.

Third, the student is entitled to services that “enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.”  Notice that this standard is not exactly the same as “FAPE.”

It’s close, but it’s not precisely the same standard.

These are things we talk about in the Toolbox training?  Interested?  Let me know!

DAWG BONE:  DON’T TAKE “MANDATORY EXPELLABLE” TOO SERIOUSLY.

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

Tomorrow: the next culture war case…