So how were the holidays? I hope on this first Monday of the new year you are rested and ready.  Actually the rested part is more important, because ready or not, here it is.  It’s 2022.

This year we will continue to tell you about important legal developments that have lessons for Texas educators. We will focus on all sorts of issues—personnel, student discipline, special education, business matters, governance—you name it.  Tuesdays will still be designated Toolbox Tuesdays providing an emphasis on the discipline of students with disabilities. And we will continue to Zoom with the Dawg on the third Friday of each month. So mark your calendar now for January 21 when we have our first Zoom call of the year.

That’s it for today.  We’ll get more substantive tomorrow.

DAWG BONE: BEING READY IS GOOD, BUT IT’S GOING TO HAPPEN ANYWAY. 

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

Tomorrow: Toolbox Tuesday!

We’re Zooming with the Dawg at 10 this morning! Be there in your holiday finery!!

The Case of the Year has to go to the one and only Supreme Court decision that directly involves school law—Mahanoy Area School District v. B.L.  As Loyal Daily Dawg Readers know, SCOTUS ruled that Brandi’s foul-mouthed rant on Snapchat was constitutionally protected as free speech, and thus her suspension from the JV cheerleading squad was improper. 

It turned out not to be the blockbuster many of us expected. The Court declined the opportunity to offer a sweeping decision about the authority of schools to address off-campus conduct. Instead, we got what the Court called a more nuanced decision.  The good news for schools is that the Court implicitly acknowledged that campus administrators can address those off-campus issues that cause the most concern: bullying, harassment, threats of violence or school disruption. So we can live with this decision. 

There were other events this year that are worth mentioning as we finish out the year.  Here’s a list:

1.  Litigation over mask mandates, and who has the power to address this issue.  This has bounced around so much with so many courts coming to so many different conclusions that I have refrained from saying much about it here.  I write these posts two weeks before you see them.  That’s enough time for the Temporary Restraining Order to be stayed, the Temporary Injunction to be considered, and the class action to be decertified.  It’s been moving too fast. 
2. Craziness at school board meetings to the point that Saturday Night Live picked up on the issue with a skit that was largely based on actual events at a Texas board meeting.
3. Legislation attempting to mandate that we teach American History without offending or upsetting anyone. 
4. Ongoing confusion about how we will continue to serve students as the pandemic goes up and down, but never away.  Confusion over funding, hybrid and synchronous/asynchronous learning, etc.
5. Efforts to remove books from the library, or from voluntary reading lists.
6. Litigation, legislation and lobbying about how we serve transgender students.
7. A new law that allows homeschoolers to compete in UIL activities for the local school. But it’s a local option, and no one seems to be permitting it.
8. More fights over the expansion of the charter school industry in Texas. 
9. A major change in the Dyslexia Handbook.
10. Texas getting dinged in a major way by the federal government for our failure to fund special education properly.

Of course it was a legislative year that included not one, not two, but THREE, COUNT ‘EM THREE special sessions.  After each session of the legislature I can count on some superintendent to offer a wisecrack, labeling some new piece of legislation “The School Lawyers Full Employment Act.”  Nobody said that to me this year, maybe because there were so many things that could merit that designation. 

We school lawyers do not need to worry over future employment.  There is a lot going on and there is no end in sight. We hope you find the lawyers to be helpful.  At our firm, we strive to Help the People Who Help the Kids. We try to minimize the legal risks for you so that you can concentrate on what you are there to do: convey to the next generation the knowledge, the skills and the values that we need to maintain this experiment in self-government.

So on behalf of the Walsh Gallegos Law Firm, all of my partners, and all of the staff at WG, the Dawg wishes you a Merry Christmas, a Happy New Year and a restful and rejuvenating break.  We’ll be back on January 3, 2022. 

DAWG BONE:  HO! HO!! HO!!!

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

The Dawg has put several items on the Sheesh-O-Meter this year. There was the Oregon case that involved a 17-day special education due process hearing which resulted in a 163-page decision from the hearing officer.  There was SB 179 that seeks to micromanage how counselors spend every minute of the day.  But the high score on the S-O-M still belongs to the 3^rd Circuit’s decision in the cheerleader/F-Bomb/Snapchat case that later went to the Supreme Court. 

This decision belongs on the Sheesh-O-Meter because of the way the judges dismissed the efforts of educators to pass along important values. Notice the condescension in the following paragraph from the court’s decision:

The heart of the School District’s arguments is that it has a duty to “inculcate the habits and manners of civility” in its students.  To be sure, B.L.’s snap was crude, rude, and juvenile, just as we might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and by encouragement, but they may not leverage the coercive power with which they have been entrusted to do so.

That’s poppycock dressed up in lofty language.  It undercuts the important work educators do every day to teach values.  This case involved a student who volunteered to try out for the cheerleading squad. She promised to be respectful to coaches and the program itself.  She violated that promise and the school district applied a consequence.  It was a teachable moment, and the school used that moment to attempt to teach something important.

The court says that educators may not “leverage the coercive power” that they have to teach “the habits and manners of civility.”  In other words, educators cannot use their power to teach values.  Why not?  Educators use coercive power to teach kids how to multiply fractions, how to diagram sentences, how to conduct a science experiment. Are those things more important than “the habits and manners of civility”?     

The Dawg continues to mutter….Sheesh. 

DAWG BONE: LEVERAGE YOUR COERCIVE POWER FOR THE GOOD.

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

Tomorrow: The Case of the Year, 2021!

We’re about to have two weeks off!!  I know it’s a busy two weeks, but still you should have some time to catch up on some reading or TV watching. So here are a few suggestions from me. And we will welcome more this Friday when we have our final Zoom with the Dawg meeting. 

MOVIE THAT POSITIVELY PORTRAYS A PUBLIC SCHOOL TEACHER: That would be “CODA” which is on Apple TV. CODA, I learned, stands for Children of Deaf Adults. This is a terrific story, well told, with a warm heart and a lot of laughs about a family of deaf people supporting themselves with a commercial fishing boat.  There is one person in the family who is not deaf, and this is her story.  It’s inspiring, largely due to the commitment of the public school music teacher who saw the potential this girl had.  If vulgar language is a deal breaker for you, then this is not your movie. But seeing as the U.S. Supreme Court declared F-bombs to be constitutionally protected (see Mahanoy Area School District v. B.L.) I have no hesitation in recommending it.

BOOK THAT REMINDED ME OF HUCKLEBERRY FINN: That would be The Lincoln Highway by Amor Towles.  The story of four boys traveling across the country in 1953, encountering a variety of colorful characters. 

BOOK THAT IMPROVED MY VOCABULARY: That would be The Dictionary of Lost Words by Pip Williams.  It’s loosely based on the development of the Oxford English Dictionary. 

TV SHOW THAT POSITIVELY PORTRAYS A COACH: Ted Lasso.  Of course. 

BEST DOCUMENTARY SERIES: I nominate Muhammad Ali.  I thought I knew the story pretty well, but oh my. 

DAWG BONE: GET YOUR SUGGESTIONS READY FOR FRIDAY!

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

Tomorrow: the Sheesh-O-Meter.

The Daily Dawg has designated Tuesdays as Toolbox Tuesdays for many years now.  The Toolbox is our firm’s one-day training program that focuses on serving those few students in your special education program who are seriously disruptive, or even violent.  This is a situation that virtually every district in the country encounters, and so we think there is an ongoing need for reminders of the way the law guides decision making.  This being the final Toolbox Tuesday of the year, we offer a quick summary of the ten tools. 

1.  A BIP. The most important tool, because it’s the only one designed to improve the student’s behavior. The BIP is not about what you might do TO a student—the Code of Conduct addresses that.  The BIP is about what the school will do FOR the student.
2. Educational Change of Placement with Parental Agreement.  This will usually involve a move to what we call an MRE—More Restrictive Environment.  If it serves the student well, and is agreed to by the parent, it’s easily done.
3. Educational Change of Placement Without Parental Agreement.  Here’s where the lawyers come in. This is a move to an MRE that the parent opposes.  How to navigate that? How does the “stay put” rule come into play?
4. Seeking an Expedited Hearing.  The least frequently used tool because the circumstances that would justify its use are rare.
5. Special Circumstances Removal.  A tool that belongs to the campus principal, ordering the immediate removal of a student based on one of three “special circumstances” offenses. But there are still some legal requirements and procedural steps that need to be taken.
6. Disciplinary Change of Placement. This is about sending the student to the DAEP after providing due process and making a manifestation determination.  And about making sure the student continues to receive appropriate services.
7. The FAPE-Free Zone.  Counting to ten.  This is the only time during the school year when FAPE-level services are not required. But there are still requirements under state law to consider.
8. Short Term Removal After the FAPE-Free Zone. Contrary to conventional wisdom, campus principals are not powerless after the student’s 10^th day of removal. But there are procedural and substantive issues to be addressed. This is the most complicated tool in the Toolbox.
9. Leadership at the Non-Consensus ARD Meeting.  Can you bring the meeting to closure, even when there is a lack of consensus?  This is an essential skill.
10. Calling in Law Enforcement.  The last tool in the box is sometimes the first tool we reach for.  But it should be reserved for genuine issues of security or criminal conduct. Routine discipline should be handled by educators, not cops.

We will continue to offer Toolbox Tuesdays next year.  So look for the first Toolbox Tuesday of 2022 on January 4^th!

DAWG BONE: TEN TOOLS DESIGNED TO HELP YOU MAINTAIN SAFETY AND ORDER WHILE SERVING ALL STUDENTS APPROPRIATELY. 

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

Tomorrow: Some Suggestions!!

This Friday will be the final Zooming with the Dawg for this year. Be sure to join me at 10:00 on Zoom. Free to all Loyal Daily Dawg Readers.

As we approach the end of the year I decided to go back over all of the Daily Dawg posts from 2021. This week we will revisit some of the highlights, including the Case That Scores Highest on the Sheesh-O-Meter; The Case of the Year; and some suggestions for viewing and reading over the upcoming holiday. 

For today, just some information about what districts and charters were mentioned in the Daily Dawg.  Here you go:  Austin, Bridge City, Brownsville, Comal, Copperas Cove, Dallas, Dublin, Eagle Mountain-Saginaw, Edcouch-Elsa, Edinburg, Fort Bend, Fort Worth, Friendswood, Frisco, Golden Rule Schools, Hallsville, Harlandale, Hays, Houston, Hurst-Euless-Bedford, Judson, Katy, Kingsville, Klein, Manor, Mesquite, Mission, Monte Alto, Neches, North East, Northwest, Pearland, Peaster, Port Neches-Groves, Raymondville, Richardson, Riesel, Rocksprings, Rockwall, Round Rock, San Felipe Del Rio, Spring Branch, Sweetwater, Webb, and Wimberley.

We told you about cases from Alabama, Arizona, California, Colorado, Connecticut, D.C., Georgia, Illinois, Maryland, Massachusetts, Minnesota, Missouri, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Virginia, and Washington.  And, of course, a lot from Texas.

We’ve recommended a few books and told a few stories.  We’ve dissected many pieces of new legislation. We’ve recognized a new name in the law firm due to Bob Russo’s retirement which opened up space on the name for Bridget Robinson.

We hope you’ve enjoyed, and learned a few useful things.  Tomorrow: The final Toolbox Tuesday of 2021.

DAWG BONE: HOW ABOUT THIS FOR A NEW YEARS’ RESOLUTION: TO SEE YOUR SCHOOL DISTRICT NAMED IN THE DAILY DAWG!!

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

Tomorrow: Toolbox Tuesday!!

Many of you Loyal Daily Dawg Readers have heard me rattle off a string of IDEA-related acronyms at a conference.  It always draws a laugh.  I usually conclude this particular shtick by asking “how many of you recognized 80% of that?  If you did, you are a SPECIAL ED TYPE!!”

In its recent decision in favor of Riesel ISD the 5^th Circuit outdid me, and they did it by way of explaining why they ruled in favor of the district on all issues.  So here is the court’s explanation:

For those who prefer acronymic efficiency, however, our holding is roughly as follows:  RISD did not violate IDEA with respect to K.S. because, as the SEHOs correctly found at the DPHs: (1) the ARDC’s IEPs for K.S., which included the PLAAFP statements, TEKS goals for K.S.’s grade level, various accommodations, and a transition plan, were appropriately individualized in light of K.S.’s SLD; and (2) no actionable violation resulted from wrongly excluding K.S. from the Sept. MDR, which reviewed K.S.’s prior FIEs, FBA consultations, his IIE, Ms. H’s reports of K.S’s ADHD (an OHI), TBI, and mood disorders, and concluded that K.S.’s SLD did not cause him to commit the assault for which he was assigned to DAEP. And, in sum, the D.Ct. did not err in holding that K.S. received a FAPE in the LRE in compliance with IDEA.

I think somebody enjoyed putting that paragraph together. It’s Leigh Ann H. v. Riesel ISD, decided by the 5^th Circuit on November 22, 2021. And by the way, did you get 80% of that?  If so, congratulations!

DAWG BONE: “ACRONYMIC EFFICIENCY” INDEED!Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Professional employees of Texas school districts have a qualified immunity from liability for acts that are “incident to or within the scope of the duties” of the employee’s job, and involve judgment or discretion.  There are exceptions to this in cases involving the use of force in disciplining a student.  A recent decision involving a superintendent illustrates how broad this immunity is. 

The plaintiffs claimed that the superintendent had informed them that he had obtained a commitment from AT&T, a district vendor, to donate over $10,000 at the annual Laredo International Fair and Exposition (LIFE) where students in the FFA program (Future Farmers of America) would be showing their animals.  The superintendent remembered things differently.  He said that he had promised to seek a donation from the vendor, and he did. But it was turned down.  The plaintiffs ended up spending a little over $10,000 on animals purchased at the auction, thinking that AT&T was good for it.  When that turned out not to be the case, they sought reimbursement from the superintendent, claiming he had breached an oral contract. 

The suit was filed against the superintendent in his individual capacity.  In other words, the plaintiff viewed this as a personal commitment that the superintendent had made, an oral contract that he should be held to.  They did not view this as connected to his job. 

However, the lawyers representing the superintendent effectively argued that the superintendent’s role in this story, regardless of who you believed, was “incident to” his job duties.  The court’s opinion lays out at length the 15 duties of a superintendent spelled out in the Texas Education Code, the six duties assigned to the superintendent and board together, and district policy that lists 31 additional duties under the headings of Educational Leadership, District Management, and Board and Community Relations.  The court emphasized two duties in particular:

Create and support connections with community organizations to provide community-wide support for the high achievement of all district students;

Establish mechanisms for community and business involvement in the schools and encourage participation.

That was enough for the court to conclude that whatever the superintendent did or did not do, all of it was “incident to” his duties as superintendent. After all, the LIFE Auction was an important community event, particularly for the students in FFA.  The relationship with AT&T, a major vendor, was also important.  All parties to the dispute agreed that their interactions were about getting some money to support the FFA and the school.   The court summed it up like this:

Although the LIFE auction was not a school-sponsored event and fundraising is not a superintendent duty, we hold the summary judgment evidence shows that Gonzalez’s actions, as alleged by [the plaintiffs], were incident to his duty to “create and support connections with community organizations to provide community-wide support for the high achievement of all district students.”

So the superintendent was immune from liability. Case dismissed. 

The qualified immunity statute, Texas Education Code 22.0511, most often comes up when students are physically injured at school due to an alleged negligent act by a school employee. But as this case demonstrates, it can apply in all sorts of other situations as well.  This one is Gonzalez v. Johnson, decided by the Court of Appeals in San Antonio on October 27, 2021.  We found it at 2021 WL 4976562.

DAWG BONE: LOT OF THINGS ARE “INCIDENT TO” YOUR JOB AS SUPERINTENDENT.

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

Tomorrow: warms the Dawg’s heart.

Today I will be at the Kalahari Resort (which seems to be the go-to place for educational conferences these days) at the annual ED311/TASPA Conference on personnel issues. My topic is about terminations and nonrenewals. One of the cases I will be talking about is Monte Alto ISD v. Orozco.  The decision is….let’s just say “surprising.” 

I say that because it departs from the conventional wisdom.  Ever since the legislature created a set of laws pertaining to the nonrenewal of a term contract there has been a big distinction between the PROPOSAL to nonrenew the contract and the actual DECISION to do so.  Districts that gave the employee a notice of nonrenewal that omitted the word “proposed” have found themselves in trouble.  The sequence of events for the proper nonrenewal of a term contract flows like this:

Step One: board votes to give the employee notice of proposed nonrenewal, usually based on the superintendent’s recommendation.

Step Two: the employee is given written notice of this proposed action. 

Step Three: the employee requests a hearing; or fails to do so within the timeline.

Step Four: if the employee requested a hearing, the board conducts the hearing and then decides about the nonrenewal. If the employee did not request a hearing, the board takes formal action to nonrenew the contract. 

Ask any experienced school lawyer when the employee’s contract is nonrenewed and they will tell you that this happens at Step Four.  Everything prior to Step Four is preliminary.  But that’s not how the Court of Appeals in Corpus Christi-Edinburg sees it.

The Monte Alto ISD board voted to propose the nonrenewal of Ms. Orozco’s contract on April 24, 2018 (Step One).  Written notice of this decision was given to Ms. Orozco on May 1, 2018 (Step Two).  She requested a hearing in timely fashion (Step Three). The hearing was conducted almost four months later on August 29, 2018, after which the board voted to nonrenew the contract (Step Four).  Rather than appealing this decision to TEA, Ms. Orozco filed a claim of discrimination with the Texas Workforce Commission on February 25, 2019, which was just short of 180 days later.  The timing was important.  Crucial.  Jurisdictional.   

You have to file a claim with TWC within 180 days after the act of discrimination allegedly occurred. The district argued that Ms. Orozco filed too late, and thus the court did not have jurisdiction to consider her case. The court pinpointed the issue:

Thus, as the parties correctly discern, the key inquiry in this case is whether the 180-day countdown for purposes of filing a claim with TWC began on May 1, 2018, when Orozco was notified of her proposed nonrenewal, or August 29, 2019, when the Board voted to finalize its nonrenewal decision.

Ignoring decades of decisions from TEA about how term contract nonrenewal works, the court held that the decision to “propose” nonrenewal was actually a decision to nonrenew, subject only to reconsideration upon request.  Here’s the Key Quote:

In other words, per the education code a “proposed nonrenewal” acts as a notification of the Board’s decision of nonrenewal, which may or may not be reconsidered through the relevant hearings or administrative review process if the educator seeks such a review.

This isn’t the first court to go down this road.  An earlier case applied the same logic in a case involving contract termination, Reyes v. San Felipe Del Rio CISD, 2018 WL 1176487 (Tex. App.—San Antonio, 2018).

I’m not saying the court got it wrong.  I’m just surprised, like a batter who gets a curveball when he expects a fastball. It’s Monte Alto ISD v. Orozco, decided by the Court of Appeals for Corpus Christi-Edinburg on November 4, 2021.  It’s cited at 2021 WL 5114040.

DAWG BONE: CURVE BALLS HAPPEN.

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

Tomorrow: interesting application of qualified immunity.

The 5^th Circuit has issued a published opinion in favor of Riesel ISD that touches on a number of common special education issues.  These include Child Find, what an IEP ought to look like, and student discipline. Since today is Toolbox Tuesday, we’ll tell you about the discipline issue. 

The school proposed placing the high school student in DAEP for 40 days due to an alleged assault.   The district held an ARDC meeting to conduct a manifestation determination in August, 2017.  At the time the ARDC meeting was held, the student was banned from school grounds, so he did not attend. This was particularly unfortunate because he had just turned 18. That meant that the rights of the parent under IDEA had transferred to him. He should have been at the meeting.  However, the district quickly corrected this error by holding a second meeting about a week later. With the student in attendance, the ARDC decided that his behavior was not a manifestation of disability. The student disagreed, and this became one of the issues in the subsequent due process hearing

The school district prevailed on all levels in this case—with the hearing officer, the federal district court, and now the 5^th Circuit.  At the Circuit Court level the argument over the manifestation determination was strictly about procedure, rather than the facts.  The student argued that his exclusion from the ARDC meeting was a fatal error, a denial of his opportunity to participate in the process in a meaningful way. 

Nope. The court did not see it that way. The student was present at the second meeting and had his opportunity to participate.  Therefore this falls squarely in the “no harm, no foul” category.

We’ll have more to say about this case, but that’s it for today.  Except to add that the case of Leigh Ann H. v. Riesel ISD was decided by the 5^th Circuit on November 22, 2021, and will be published in the Federal Reporter, meaning that it can be cited as a binding precedent in future cases.  Hats off to the district staff, and the team effort at Walsh Gallegos led by Gigi Driscoll, Jennifer Carroll, Craig Wood, Nona Matthews and Meredith Walker.  Until it’s published in the Federal Reporter, the opinion can be found at 2021 WL 5444726. 

DAWG BONE: REMEMBER TO INCLUDE THE 18-YEAR OLD STUDENT IN THE ARD MEETING.

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

Tomorrow: a curveball from the court.