We’re Zooming with the Dawg at 10:00 this morning. Hope you can join me and my special guest, Dr. Jamey Harrison from the UIL. 

The late Justice Scalia once expressed the wish that all federal judges would have a stamp that read “stupid but constitutional.”  We hate to see a judge cite that famous quote in a case involving a school district, but unfortunately, that’s what happened in Pearland ISD last year.

While mostly ruling in favor of the school district, the magistrate judge described the actions of the school officials as “stupid” and defying “all logic, commonsense, and, in my estimation, common decency.”  In other words, Hizzoner wanted to make it clear that he did not approve of the decision to bring the 7^th grader into compliance with the dress code by using a Sharpie to fill in the bare places on his scalp after he sported a new haircut featuring a “fade with a design line.”  Despite the judge’s strong personal disapproval, he dismissed almost all of the claims in the suit.  Here’s why:

THE PARENTS.  The court held that the parents lacked “standing” to pursue this case in their own names, as they did not allege any injury to themselves.  They could serve as representatives for their son, but had no basis to file a suit on behalf of themselves. So claims filed by the parents were dismissed.

THE 4^th AMENDMENT CLAIM OF EXCESSIVE FORCE.  This claim was dismissed based on Flores v. School Board of DeSoto Parish, a 5^th Circuit decision from 2004 that limited the ability of students to make such claims in a disciplinary context.

DUE PROCESS UNDER THE 5^TH AMENDMENT.  Dismissed.  The 5^th Amendment applies only to the federal government, and there was no federal involvement in this incident.

PROCEDURAL DUE PROCESS UNDER THE 14^TH AMENDMENT.  Dismissed.  The student was never suspended or even sent to ISS. He was given a choice between ISS and the Sharpie, and he chose the Sharpie. Being threatened with ISS does not invoke the due process requirements of the 14^th Amendment. 

SUBSTANTIVE DUE PROCESS UNDER THE 14^TH AMENDMENT.  Dismissed. Previous cases have made it clear that as long as state law provides a remedy for abuses by school officials, there is no constitutional claim.  Texas does provide for such remedies.

EQUAL PROTECTION UNDER THE 14^TH AMENDMENT.  Dismissed.  The African-American student made conclusory allegations of racial discrimination but did not put forth any factual allegations of white students who were treated differently.

RACIAL DISCRIMINATION UNDER THE CIVIL RIGHTS ACT.  Dismissed. This claim was against the district. The court noted that the district is not “vicariously liable” for the wrongful actions of its employees. There was no PISD policy that authorized this action, and the plaintiff failed to produce facts showing deliberate indifference by any of the higher ups in the district.

CONSPIRACY.  The school’s lawyers pointed out that the district and its employees constitute a single legal entity.  Conspiracy claims require proof of actions by two or more entities acting in concert.  You cannot “conspire” with yourself.  The court agreed with that.  Dismissed.

WHAT’S LEFT?  The student still has a lawsuit to pursue here, but only based on allegations of assault against the specific individuals who were involved. This included an assistant principal, a discipline clerk and a teacher.

The case is Trice v. Pearland ISD, decided by the federal court for the Southern District of Texas on April 1, 2020, with the court approving the Magistrate’s Report and Recommendation. The court order can be found at 2020 WL 1667748 and the R&R is at 2020 WL 1557750. 

DAWG BONE:  LET’S LEAVE THE SHARPIES FOR AUTOGRAPHS, NOT HAIRDOS.   

We’ve got one of those “Letters to Anonymous” to tell you about today.  Good old Anonymous continues to provide fodder for the Daily Dawg with these letters to the Student Privacy Policy Office (SPPO) which was previously known as the Family Policy Compliance Office (FPCO).  This one is about a teacher who displayed student work on the walls of the classroom for all to see, including parents who might visit the classroom on Back to School night. From the letter it sounds like the teacher also left the grades on the student work.  Is that OK?

The SPPO sorta dodged the issue by telling Anonymous that the complaint was “lacking in sufficient clarity” for it to make a ruling. Nevertheless, the letter suggests that this complaint lacks merit. Consider this portion of the SPPO’s response:

FERPA is not, on the other hand, intended to interfere with a school’s or a classroom teacher’s, ability to carry out what are generally considered to be normal and legitimate educational activities and functions.  Thus, a thoughtful, common sense, and flexible approach is necessary in judging the impact of some classroom activities on a student’s right to privacy and vice versa. 

Further, FERPA would not prohibit teachers from allowing students to grade a test or homework assignment of another student or from calling out that grade in class, even though such grade may eventually become an education record.  Such papers being graded and the grades which will be assigned would fall outside the FERPA definition of education records as they are not, strictly speaking, “maintained” by an educational agency or institution at that point, which means they are not yet “education records”….

FERPA is not intended to prevent teachers from livening up and personalizing their drab classroom walls with examples of student art or other projects.  Such displays serve a legitimate educational purpose by positively reinforcing the students and providing examples of good work.  Putting the grade on the work does raise a separate issue, though, and seems unnecessary.  The Dawg is sure that principals and teachers have the wisdom to use the “thoughtful, common sense, and flexible approach” recommended here by SPPO. 

It’s Letter to Anonymous, published by the Student Privacy Policy Office on February 28, 2020 and reported in Special Ed Connection at 120 LRP 18036.

DAWG BONE: AND LET’S REMEMBER TO UPDATE OUR INITIALISMS.  IT’S SPPO NOW, NOT FPCO.  Tomorrow: “stupid but constitutional.” 

How do you rank our 12 months?  I’ve always thought that February was clearly the deadender in the group, the 12^th best month of the 12.  That was particularly true this year with Snowpocalypse.  But at the top of the list it’s a close call between October and March.  October has the great weather, the break from the searing Texas heat, college football in full swing, including the Texas-OU game, which Texas occasionally wins, colorful leaves, the baseball playoffs and World Series, all topped off by Halloween.

But March has spring, longer days, more sunshine, open windows, Texas Independence Day, bluebonnets, March Madness, Spring Training, Spring Break….and St. Patrick’s Day.  Today, in honor of my Irish heritage, I offer a sampling of Irish Blessings:

May the leprechauns dance over your bed and bring you sweet dreams.

May the roof above us never fall in and may the friends gathered below it never fall out.

Here’s one that plays to stereotypes:

When we drink we get drunk. 

When we get drunk, we fall asleep. 

When we fall asleep, we commit no sin. 

When we commit no sin, we go to heaven.  

So, let’s all get drunk and go to heaven.

And speaking of heaven, here’s my favorite:

May you be in heaven a full half hour before the devil knows you’re dead.

DAWG BONE: ERIN GO BRAGH!

Tomorrow: student artwork on the wall.  Legal issue?

Teachers sometimes worry about lawsuits aimed directly at them and the risk of personal liability.  I generally try to calm those troubled waters, pointing out that such suits are exceedingly rare.  But they do happen, and usually such suits are based on behavior that would cause any good teacher to squirm.  So let us consider a recent preliminary decision from North Carolina. 

The court refused to dismiss claims of a denial of due process against two teachers and the principal.  The basis of the claims:

Plaintiffs allege that H.W. was placed in the seclusion room “for extended periods of time, on multiple occasions” and “forgotten” to the point of missing his medications and meals as part of a “standard practice” incorporated to manage his outbursts. 

Allegations that H.W., a special needs student, was placed in a dark seclusion room—in direct violation of North Carolina law, Stanly County policy, and H.W.’s own BIP—on multiple occasions and for extended periods of time, unsupervised, and within reach of cleaning supplies and electrical outlets, plausibly state a violation of his right to bodily integrity. 

The principal claimed qualified immunity, but it was denied because of the allegations that he knowingly violated state law, school policy and the student’s BIP, thus exceeding his discretionary authority.  The Director of Student Services and Director for Exceptional Children were dismissed from the case as there was no allegation of their personal knowledge or involvement. The claim against the district was also dismissed, but the principal and two classroom teachers are still defendants in this litigation.

The court’s ruling is a stretch from existing precedent, but that can happen when the court is only making a preliminary ruling.  Due process claims are usually based on a total exclusion from school by way of suspension or expulsion.  Here, the exclusion was the repeated use of a seclusion room.  Claims of an infringement of the right to bodily integrity are usually based on sexual misconduct or physical abuse, but here the claim is based on the use of an unsafe seclusion room. So the court is stretching things a bit, but that can happen in a preliminary ruling, which assumes the truth of the allegations in the suit and the favorable inferences that could be drawn from those allegations.

The Toolbox is designed to help you stay out of this kind of trouble.  The Toolbox provides participants with a good understanding of the 10 “tools” they have to deal with disruptive students, none of which involve extended seclusion in an unsupervised and dangerous closet-type room.

The case is Brattain v. Stanly County Board of Education, decided by the federal court for the middle district of North Carolina on October 28, 2020.  We found it on Special Ed Connection at 77 IDELR 223.

DAWG BONE: EXTENDED SECLUSION IN AN UNSAFE SETTING.  NOT A GOOD IDEA.

Tomorrow: A special day.

We’re Zooming with the Dawg this Friday with special guest Dr. Jamey Harrison, Deputy Director of the UIL.  Hope you can join us at 10:00 a.m. 

The issue of transgender students in our public schools continues to be front and center in the culture wars.  The transition from Trump to Biden Administrations represents a turning point.  One of President Biden’s first executive orders called for a sharp reversal of federal policy regarding this issue. The Department of Justice abruptly changed its position in some major court cases.  And at the confirmation hearings for the new Secretary of Education some of the Republican senators grilled Dr. Cardoña about the new administration’s plans.  Much of this was about athletics. 

We have at least two bills pending in the Texas legislature that speak to this issue.  Furthermore, our lieutenant governor has enumerated his top 31 priorities for the session, and coming in at #29 is “Fair Sports for Women and Girls.” 

Caught in the crossfire is the University Interscholastic League which has governed all of our competitive extracurricular activities for over 100 years.  On Friday in our Zooming with the Dawg event I will be joined by Dr. Jamey Harrison, the Deputy Director of the UIL.  Jamey will fill us in on the current rules enforced by the League, his guesstimates about legislative outcomes and whatever else he can share with us. Jamey is always helpful and relevant and enjoyable, so I hope you will join us.  Bring your A.D. along as well!

The Zooming with the Dawg is a freebie for all Daily Dawg subscribers. If you are not yet registered, just send an email to info@wabsa.com.  Hope to see you Friday!!

DAWG BONE:  JAMEY HARRISON, THE UIL, TRANSGENDER STUDENTS AND ATHLETICS.  YOU DON’T WANT TO MISS THIS CONVERSATION.

Tomorrow: Toolbox Tuesday!!

Be sure to join us for next Friday’s Zooming with the Dawg when my guest will be Jamey Harrison, Deputy Director of the UIL. We will discuss the controversy over transgender students participating in athletics, legislation to watch out for, and whatever else is cooking at The League.  Friday, March 19 at 10:00 a.m. 

Do you remember when you first realized that this COVID thing was going to be big?  For me it was a year ago today.  That’s the day we cancelled our family’s spring break trip to Washington D.C.  South by Southwest had been cancelled already. Then March Madness. Then Spring Training and Opening Day of the baseball season. Obviously, this was going to be a Big Deal. I wondered how long this would go on.  A few weeks?  August??  October??? 

I could not fathom the possibility that a year later we’d still be wearing masks and avoiding large gatherings.  Sigh.  I’m happy to report that Mrs. Dawg and I have both received both doses of the vaccine and had no side effects.  I wish the same for all you Loyal Readers.  

Let’s spend a few minutes today expressing gratitude to the many people and institutions that have helped us get through this.  Certainly teachers and school employees are at the top of my list, along with health care workers, first responders, those folks at the grocery store and the many people that are delivering things to our homes.  I’m sure that many, if not most of you, know of at least one person we have lost due to the pandemic, so our gratitude is mixed with sadness. 

I hope that the Walsh Gallegos law firm has adequately pivoted to the “new normal” so as to continue to fulfill our mission of helping the people who help the kids.   If there is anything we can do to improve on that, please let me know. 

We are normally just about at spring break time here in Texas, but I expect that the 2020-21 school calendar is a mess due to….due to all of this.  So I’m not going to take my customary one week break from the Dawg. We’ll be barking at you again next week.  See you then.

DAWG BONE:  LET’S MARK ONE YEAR WITH GRATITUDE ALONG WITH OUR SADNESS.

Well, there is.  You can find them at www.badassteacher.org and you can follow them @BadassTeachersA on Twitter.  Who knew?

The group was formed in 2013, and yes, there is a Texas chapter. The group says this about itself:

BATs is a pro-public education/social justice advocacy ACTIVIST group.  We fight for public education. This is our main focus.  As we have evolved since our first days, we have worked hard on developing our own understanding of exactly what that means. 

In our vision: Education justice IS social justice IS racial justice. The three cannot be separated.

Surely one of the Daily Dawg subscribers is a Badass Teacher.  I’d love to hear from you! Send me an email: jwalsh@wabsa.com. 

DAWG BONE: THERE ARE THOUSANDS OF BADASS TEACHERS IN TEXAS.  NOW THEY ARE GETTING ORGANIZED.  GOD HELP US.

Tomorrow: It’s been a year.

School policy required that medications be locked in a cabinet in the nurse’s office. According to the plaintiff, that’s not even close to what happened. The suit alleges that the meds were not in the nurse’s office, and the cabinet was not locked. Moreover, the student was able to access this cabinet and get these meds without a teacher stopping him.  Sounds pretty bad, right?  Keep in mind, though, that these are the facts as alleged in the lawsuit.  Some of them would likely be disputed by the school district if the case went to trial.

But it’s not going to trial.  The school district had a more fundamental defense—that the court lacked jurisdiction to hear the case.  The Court of Appeals in Fort Worth agreed with that.  The court held that the school district, as a governmental entity, was immune from the lawsuit in the first place.  Thus the courts lacked jurisdiction to even consider if this amounted to the type of “gross negligence” in medication management that could lead to legal liability. 

Immunity for school districts comes in two types: there is immunity from liability, which means that the plaintiff cannot recover damages; and there is immunity from suit, which means the plaintiff cannot even sue over the matter.  Obviously, if the school is immune from being sued, it is automatically protected from liability for damages.

The plaintiff based the suit on Section 22.052 of the Education Code, which is all about administration of meds.  The statute calls for immunity for the district, and its employees if there is a policy in place, meds are in a proper container and the parent has given permission to administer the medication at school.  I bet your district has adopted that policy.

The statute concludes with this:

This section may not be construed as granting immunity from civil liability for injuries resulting from gross negligence.

So it sounds like if “gross negligence” occurs, there is no immunity.  That’s what the plaintiff argued. 

But the plaintiff failed to take into account the statute that precedes 22.052, which says:

The statutory immunity provided by this subchapter is in addition to and does not preempt the common law doctrine of official and governmental immunity.  T.E.C. 22.051(b), emphasis added.

That’s where the immunity from suit comes from, and that’s what the court relied on.  Key Quote:

But in that section, [referring to 22.052] the Legislature at most waived the District’s immunity from “civil liability for injuries resulting from gross negligence,” not its immunity from suit. 

As this case illustrates, school districts are well protected from liability for the kind of torts that non-governmental entities would be liable for.  But it shouldn’t take fear of liability to maintain safe practices in the school district. That policy about medications is there for a reason.  Follow it!

The case is Doe v. Hurst-Euless-Bedford ISD, decided by the Court of Appeal for the Second Appellate Division in Fort Worth on January 21, 2021.  I’m pleased to let you know this case was ably handled by Meredith Walker and Ali Mosser of our firm’s Irving office. 

DAWG BONE: IN A LOCKED CABINET.  PARENT PERMISSION TO ADMINISTER. 

Tomorrow: a new teachers’ organization…one you may not have heard of.

Of the ten “tools” in the Toolbox, Tool #4 is used the least.  It takes a rare set of circumstances to justify the use of Tool #4: An Expedited Hearing. You have to have 1) a perception that retaining the student in the current placement would be dangerous; 2) that perception being based on behavior that is a manifestation of disability; 3) no agreement with the parents as to a change of placement; and 4) no use or possession of drugs or weapons and no infliction of serious bodily injury.  When all of that comes together, the school can seek an “expedited hearing” before a special education hearing officer (note: not a district administrator), or an injunction from a local judge.  The school would be seeking an order to keep the student in some placement other than the one called for by the IEP, at least for a period of time.

The Hope Township in New Jersey did not seek such a hearing, and the court held that this was a denial of FAPE authorizing an award of compensatory services. Rather than seeking an expedited hearing, the school unilaterally removed the student from his current placement without parental agreement. For 17 school days, the student received no services at all.  The court held that this was a denial of FAPE.

In other words, the school district did not use Tool  #4 when it should have. 

There are a lot of extenuating circumstances in this case. The student was new to the school district and came in with behavioral issues far more serious than the school was told. The hearing officer and the court noted that the parent was less than candid about the student’s condition, and the previous school failed to forward some of the important records.  Moreover, Hope Township did not sit on its hands during those 17 days, it was “scrambling” to try to find a good placement for the student.  But meanwhile, the school provided no services. 

In the dry, cold record of the legal proceedings it looked like the exact type of thing that the Supreme Court emphatically said schools could no longer do: unilaterally removing a student with a disability from school. The case is Christine C. v. Hope Township Board of Education, decided by the federal district court in New Jersey on February 2, 2021.  We found it on Special Ed Connection at 121 LRP 4760. 

DAWG BONE: FAILURE TO USE TOOL #4 WHEN YOU CAN MAY BE A DENIAL OF FAPE.

Tomorrow: Immunity from suit; immunity from liability. Not the same thing.

If you think about the two factors that determine a student’s eligibility for special education services, you can see that your students fall into four general categories.  To be eligible under IDEA the student must have a disability. And the student must, as a result of the disability, require specially designed instruction (SDI). Thus with these two factors we can classify all students into four groups as follows:

	NO DISABILITY	HAS A DISABILITY
DOES NOT NEED SDI	I   GENERAL ED   Strengths/Weaknesses   May have conditions that do not disable	II   504 Substantially limited in a major life activity
NEEDS SDI	III   AT RISK   ELL SLOW LEARNERS WBFWR	IV     SPECIAL EDUCATION   IDEA ELIGIBLE

 Note:   SDI means “Specially Designed Instruction.”

 WBFWR means "Way Behind For Whatever Reasons"

To make sense of this, you have to take the term SDI in its dictionary definition, rather than the legal definition which is tied to IDEA.  If you think of the dictionary meaning of the terms, I think you will agree that English Language Learners, slow learners, and all those kids “at risk” for a variety of reasons are in need of something special by way of instruction.  Thus Quadrant III students need special help, but not due to a disability. 

That’s all for today. I hope you find it a useful way to think about things.  Might be good for a discussion at a faculty meeting.

DAWG BONE: TWO FACTORS: FOUR QUADRANTS.

Tomorrow: a rare Tool #4 case for Toolbox Tuesday!