We’re Zooming with the  Dawg at 10:00 this morning.  Hope to see you there!!

When we speak to another person, whether in person or on the telephone, we tend to match the energy level of the other person.   Have you noticed?  When I speak to someone who is tense, I can feel the tension creeping up my spine.  My whole body stiffens and my rate of speech picks up to the point that I sound like one of those professional fast talkers reading the fine print during the commercial.   

The good thing about that energy-matching feature is that it gives you some degree of control, or at least, influence.  When I hear tension on the other end of the phone, I try to slow my rate of speech, relax my body and de-escalate the conversation.  If I hear hostility (that would normally not be from a client, but from another lawyer) I try to resist my instinct to hit back with equal force.  A soft answer turneth away wrath. Doesn’t it say that somewhere?

Try this out.  It will work when you talk to a lawyer, an angry parent, a disgruntled employee, or even a member of your family.

DAWG BONE: MATCHING ENERGY GIVES YOU SOME INFLUENCE.  USE IT!

Today we offer some specifics about the lawyer’s responsibility in “giving good phone.” 

1. Give the client your full attention.  If you are not able to do that, say so, and reschedule the call for another time.  Listening is hard work, and not to be undertaken when you are trying to multitask.
   
2. Ask all the questions you need to ask to get the facts right.  Get the context as well—what’s going on in the district?  How is this student doing in school? What is the relationship with the family like?
   
3. Don’t pretend to know what you don’t know.  Many times the answer to the client’s question is “I don’t know.”  Be humble enough to say that, and then figure out a way to get a good answer to the client.
   
4. Sometimes we have second thoughts about the advice we gave.  If that’s the case, call back. 
   
5. Be precise with the language, making sure you are clear about what MAY be done, what MAY NOT be done, and what MUST be done.
   
6. Be prepared to provide the authority that supports your advice. 
   
7. Remember that you are not making the decision about what to do.  You are advising about legal requirements and risk, so that the client can make the decision. 
   
8. When discussing risk, remember that there are two kinds. There is the risk of getting challenged legally, and then there is the risk of that challenge having merit.  Be clear about this distinction. 
   
9. Keep track of your time and charge the client for your time in accordance with the agreement with the client.
   
10. Be grateful for your client!  Because your client called, you get to do the kind of professional work you want to do.  How cool is that?!

DAWG BONE: WE LAWYERS ARE NOT INTERCHANGEABLE.

Tomorrow: more telephone tips…..

Let’s talk about how you get legal advice over the telephone.  That is the most common medium for legal advice. We use texting and emailing a lot these days, but when you have a situation that involves some complexity it’s best to get on the phone. School law situations almost always involve some complexity.  So for the rest of this week, a few tips on talking to lawyers on the phone.

Getting good legal advice is a two-person team.  You play a critical role. So let’s start by outlining some of the responsibilities of the client. 

1.  Provide all of the facts.  This is the main job for the client.  The lawyer’s advice will be based on the lawyer’s understanding of the facts.  Your job is to convey those facts completely and evenhandedly.  Maybe you are not the one who knows the facts. If so, get someone else on the call with you. If the lawyer asks a question and you don’t know the answer, you may need to call back.  It’s very important that the facts—all of the relevant facts—be conveyed accurately.
   
2. Provide the context for those facts.  Are there disagreements among administrators in the district about how to proceed?  Is there conflict among the board members about this issue, or between the board and the superintendent?  Legal advice is not a dry, mechanical process.  The lawyer will serve you better if the lawyer can grasp the big picture, so help out with that.
   
3. Don’t pretend to know something you don’t know. Don’t bluff your way through.  It’s human nature to want to make a good impression on the person you speak with, but put this aside in the service of rigorous honesty.
   
4. If you don’t understand what the lawyer is saying, say so.  Lawyer-talk can obfuscate rather than clarify.  If this happens a lot, get another lawyer. 
   
5. If it’s a conference call, it’s a good idea to compare notes afterward. Did everyone understand the advice in the same way?  Often you will find that different people heard different things.  You may need to call back for clarification.  If this happens a lot, get another lawyer.
   
6. Don’t be timid about asking the lawyer for the “authority” that forms the foundation of the lawyer’s advice.  The “authority” will usually be a statute, regulation, statement of policy, or court case.  This often comes up with clients who know the answer to the question before they call, but need to convince someone else in the district.  For example, the superintendent knows the answer, but is having a hard time convincing the board president of what the law requires.  Ask the lawyer for the authority.
   
7. Don’t shop around for the answer you want.  That only provides temporary comfort, but not sustainable serenity. 
   
8. Remember who the lawyer represents.  We call the lawyer the “school lawyer” because the lawyer represents the school district as a legal entity.  The lawyer may be your friend, but the lawyer is not your lawyer.
   
9. Maybe you have a lawyer you regularly rely on who is not available to take your call. So you talk to someone else in the law firm, someone you don’t know as well.  Then you want to check it out with Old Familiar. That’s OK. Go ahead and make that call, but please tell Old Familiar that you’ve already talked to someone else in the firm.
   
10. Don’t be rushed.  Rushed legal advice is usually bad legal advice, so don’t rush the phone call. Take your time.  Don’t worry about how much the phone call is costing your district.  Our law firm, along with many others, offers “no charge” calls for regular clients, so it may be that the phone call is already covered by your district’s retainer agreement with the law firm. But even if there is some cost involved, this is not the time to worry about that.  Preventive legal advice is far more cost effective than the alternative, so just let go of any concerns you have about the lawyer’s meter.

That’s a good start. Tomorrow, we’ll talk about the lawyer’s job.

DAWG BONE:  THE LAWYER’S ADVICE IS BASED ON THE LAWYER’S UNDERSTANDING OF THE FACTS.  BAD FACTS PRODUCE  BAD ADVICE.  GET THE FACTS RIGHT.

Tomorrow: the lawyer’s job on the phone….

Join us for Zooming with the Dawg this Friday at 10!

Our firm’s Toolbox Training is all about maintaining a productive and safe school environment while simultaneously serving students who engage in disruptive behavior.  The law requires public schools to do both of those things, which can be a challenge.  These days when things go off the rails there is often a video.  I saw one recently: a school police officer in Florida body slamming a girl onto a concrete floor.

It’s become tragically clear that not just any police officer is fit for duty in a public school.  The Toolbox offers ten tools.  If we added an 11^th tool, perhaps it would be FOR GOD’S SAKE, BE CAREFUL WHO YOU HIRE. 

Thinking about this brought to mind the law passed by our legislature a few sessions ago that required cameras in certain self-contained special education classrooms. That law was designed to ensure safety by providing video evidence of what was happening with some of our most vulnerable children.  Putting cameras in the classroom may be a good idea but it is certainly not the most effective way of guaranteeing student safety. The most effective way to do that is to hire your self-contained teacher with the same degree of care that you use when hiring the head football coach. 

It's the same with your SROs and school police officers.  Office Krupke may be a great cop, but he may not have the temperament and skills to work with children and adolescents in the school environment.  So be careful.

I’ve heard it said that school safety requires that the school be hard on the outside, but soft on the inside.  That’s a good way to put it. Here’s hoping we never have to see another video of a school employee slamming a child onto the floor.

DAWG BONE: HARD ON THE OUTSIDE.  SOFT ON THE INSIDE.  

Tomorrow: Talking to lawyers….

I always think of two things on Presidents’ Day.  Typos and my resentment of Richard Nixon. 

I think of typos because Presidents’ Day always reminds me of the memo I saw from a principal to a coach who did not have the right priorities. As the principal put it, “You should know that academics takes presidents over athletics.”  Of course it does. 

Then there is the memo from the principal to the staff reminding them that “next Tuesday we will have a Lickdown Drill.”  Of course we will. 

My worst goof was in the paper I presented once at a TCASE conference about the legal duty to provide a Free Appropriate Pubic Education.  No help from Spell Check on that one.

I was sorta relieved to find that my “pubic” when I meant “public” was a mistake that others have also made.  In fact, if you Google “classic typos” you may come across the cover page for the graduation ceremonies at the LBJ School at UT from 2012.   Touting “Unlimited Possibilities” the cover features a beautiful picture of the UT Tower as the sun glints off windows and the deep blue Texas sky provides backdrop.  Below the photograph is the name of the school:

LYNDON B. JOHNSON SCHOOL OF PUBIC AFFAIRS

I guess someone must have caught it, albeit too late, because the LBJ School put out a tweet to apologize:

Our deepest apologies to our 2012 graduates for the eggregious typo in our program. 

Makes you wonder if you can get bacon to go with those eggregious typos. 

As to Nixon, my resentment has nothing to do with Watergate or Vietnam. It’s about Presidents’ Day. Do you realize that we used to have two holidays in February?  And isn’t February the kind of month in which two holidays would be very welcome?  In days of yore (like when the Dawg was a pup) we were off school on February 12 in honor of Lincoln’s birthday, and then again on February 22 for Washington’s.  Nixon consolidated these into one holiday. 

I hope you will join us for Zooming with the Dawg this Friday. If you know of a classic or eggregious typo, send it to me in advance, and we will provide a summary during the Zoom call.  jwalsh@wabsa.com.  Hope to see you at 10 on Friday!

DAWG BONE:  HAPPY PRESIDENTS’ DAY

Tomorrow: Toolbox Tuesday!!

Sunday is V-Day, and the Dawg wonders how schools are honoring Valentine’s Day with the students attending school remotely.  Emojis maybe???  However you celebrate, we hope you will truly make the Feast of Love a teachable moment, not just a day to pass out cheap cards and candies. 

I did extensive research (30 seconds on Google) on the origins of V-Day.  According to www.thoughtco.com, the original Valentine was a priest who lived in the 4^th Century.  He was thrown into jail when the Powers That Be found his teachings to be dangerous. There he befriended the jailer, and found out that the jailer’s daughter was blind.  Summoning the power of God, Father Valentine cured the girl of her blindness.  But even back then, no good deed goes unpunished. Thinking that this was some sort of witchcraft, the authorities beheaded him.  He wrote a letter to the girl the night before the execution and signed off “From Your Valentine.”

So there you have it. What lessons can we learn?

First, I continue to wonder why we call this “beheading.”  Shouldn’t it be “deheading”?

Second, a cynic would note that this guy does a nice thing for a girl and gets his head cut off.   But let’s not go down that road of male victimhood. 

Third, you have to wonder if there isn’t more to the story.  Was he in love with the jailer’s daughter?  Was she in love with him?  When he signed that letter to her did he draw a little heart?  Did he ask the jailer to make sure some flowers were delivered? 

Of course all this is questionable history.  The Dawg does not encourage you to include this story in your teaching to the children about V-Day.  Instead, we recommend the following additions to the TEKS to ensure a good understanding of why this day is special:

The student understands that the custom of giving cards to others at Valentine’s Day is not an excuse to justify vulgar language or sexual innuendo.

The student can explain why True Love flows in both directions equally, but the money spent at Valentine’s Day flows mostly from men to women.

The student understands that not getting a Valentine’s Day card from That Particular Person does not mean that the student is a loser, destined to live a life of lonely desperation, darning socks in the night when no one is there.

I think that should do. 

DAWG BONE: ALL THE LONELY PEOPLE….WHERE DO THEY ALL COME FROM?

Isn’t it a pain in the butt when you have gotten out of your car and then discover that, for some reason, you have to get back in and pull up a foot or so?  I hate it when that happens, but sometimes it’s pretty important that we get the vehicle exactly where it belongs.

A school bus driver pulled the bus into the driveway to pick up the students after school, but  stopped about a foot short of the mark.  If there had been no students who needed extra help this would have been a non-event. But there was a wheelchair bound student.  Because the bus stopped a foot short, the mechanical lift was blocked by a metal pole.  The driver got out of the bus to help the kids load up and was told by another school employee that he ought to pull the bus up just a bit.  He chose not to, thinking that he could save time by simply lifting the boy and wheelchair into the bus.

Nope.  The student tumbled out of the chair, face first, hitting the stairs of the bus.  Ouch. 

The school district’s defense to the lawsuit was that the student’s injury, unfortunate though it was, did not arise from the “use or operation” of a motor vehicle, but rather, from the bad decision of a bus driver.  Schools are liable for the negligent “use or operation” of a bus, but not for other types of bad decisions by the driver.  Therefore, the school asserted its immunity and argued that the court lacked jurisdiction to hear the case. 

Sometimes I run fact situations like this by Mrs. Dawg. I like to get an opinion about the meaning of words from a smart woman with a good vocabulary that has not been contaminated by legal training.  So I described the facts, and asked her: do you think this injury was caused by the “use or operation” of a motor vehicle?  Or was the bus just the location where the injury occurred?

She opined that the student’s injury was attributable to the “use or operation” of the bus, thus aligning herself with the 6^th Court of Appeals for Texas.   The court refused to dismiss the case.  It’s Hallsville ISD v. Garcia, decided by the Court of Appeals on December 17, 2020. 

So let the bus drivers know about this one.  Don’t shortcut it. That mechanical lift is attached to the bus for a reason.  Park the bus where the lift can be used, even if that means getting back in after you’ve gotten out.

DAWG BONE: NOT ONLY WILL THAT PREVENT A LAWSUIT.  MORE IMPORTANTLY, IT MIGHT PREVENT AN INJURY.

Tomorrow: V-Day!

We have pointed out ad nauseam here at the Daily Dawg how important the evaluation process is in serving students with disabilities.  Every decision made by the ARD Committee about eligibility, IEP content, and placement should be based on evaluation data.   This is as true during the pandemic as it was before.  Next week our firm is offering a webinar on this important topic:

IMPORTANT LESSONS LEARNED IN 2020 ABOUT SPECIAL EDUCATION EVALUATIONS

This will be a great opportunity for directors, diagnosticians, LSSPs, speech therapists and other service providers to take home some practical pointers about the entire evaluation process, including notice and consent requirements, response to IEE requests, timelines and other day-to-day issues.  The webinar will also address evaluations of students for dyslexia and for related services.  The whole enchilada!

The seminar will be conducted by two of our best: Jan Watson and Jennifer Carroll, both of whom had extensive experience as educators in Texas before going to law school. That enables Jan and Jennifer to apply “lessons learned” from the court cases to practical situations in the school. 

The webinar is a week from today: February 17 at 10:00. Sign up at info@wabsa.com. 

DAWG BONE: DON’T MISS THIS WEBINAR!

Tomorrow: Pull that bus up a bit….

We hear much emphasis these days on data-based decision making.   Making decisions based on data makes sense, particularly under IDEA with its emphasis on individualization of a student’s education.  But there are hazards.  A recent court case illustrates how the failure to “follow the data” can be costly. 

The student in this case had a BIP (Behavior Improvement Plan) that focused on behaviors that were 1) self-injurious; 2) aggressive; and 3) sexually self-stimulatory.  The district monitored the situation and issued Progress Codes with regard to every objective in the BIP.  The Progress Codes indicated the same thing with regard to every objective in the BIP: the student was “making sufficient progress to meet goal.” 

Sounds good, right?  Unfortunately for the school district, the parent retained one of those good lawyers who dig beneath the labels and look at the data.   There, the lawyer found two problems.  First, there was zero data about aggression or sexual self-stimulation.  Obviously, that’s a problem for the school district. How can you say “making sufficient progress” without any data to support that conclusion? 

Secondly, there was data about self-injurious behaviors, but it did not match the conclusion.  In fact, the data was wildly off base with the conclusion.  For example, the court noted that the data regarding self-injurious behaviors showed an increase from an average of 17 times per day to 108. The court summarized:

The Progress Code on every objective states “making sufficient progress to meet goal,” even when the accompanying data shows no progress, or, on some objectives, even regression.

This huge disconnect between data and conclusion led the court to speculate that perhaps the computer code for Progress Reports had a default setting of “making sufficient progress” regardless of what the data showed.   Hmmmm….I wonder if the court is on to something?

This is a great case to review with direct service providers who fill out progress reports.  The lesson is obvious: make sure that your conclusion can be supported by the data. 

In our firm’s Toolbox Training we talk a lot about Tool #1, which we call the Most Important Tool—a BIP. This case is a great example of how not to create a BIP.  The case is S.S. v. Board of Education of Harford County, decided by the federal district court in Maryland in 2020.  We found it on Special Ed Connection at 77 IDELR 182. 

DAWG BONE: DATA AND CONCLUSION OUGHT TO MATCH UP. 

Tomorrow: Preview of Coming Attractions!

Sometimes a school district is legally responsible for the wrongful actions of its employees. Sometimes it is not.  Today we offer an illustration of how the legal doctrine of respondent superior produces this distinction. 

 Consider the following two scenarios.

Scenario One: A journalism teacher talks a student with an eating disorder into being the subject of a feature article in the school yearbook focusing on her condition.  The teacher does not tell the parents about this or get their permission for the interviews and photographs. The teacher’s actions violated terms in the student’s 504 plan.  After the publication there were ugly comments in person and online that caused mental anguish to the student.

Scenario Two: A school resource officer grooms a 6^th grade girl and subsequently sexually assaults her more than 20 times.  

Which is worse?  I think I know your answer to that question.

But school district liability does not depend on which is worse. It depends on the basis for the lawsuit.  The lawsuit that arose out of Scenario One was based on disability discrimination—Section 504 and the ADA.  The suit from Scenario Two was based on sex discrimination—Title IX.   Respondeat superior applies to a suit under 504 and the ADA, but not to one based on Title IX.  Why?  The short answer is that this is the way the higher level courts have interpreted the two statutes. The long answer is too long and complicated for explanation in the Daily Dawg.

I expect that intelligent, thoughtful people without a legal education would think that a school that employs a rapist is more likely to be headed for trouble than a school that employs a teacher who ignored a 504 plan.  But those intelligent, thoughtful people don’t know how the courts have applied respondeat superior.   Roughly translated, this Latin phrase means that the employer is liable for the wrongful actions of its employees, even when higher ups in the organization have done nothing wrong.  The courts have held that respondeat superior does not apply to Title IX. But it does apply to 504/ADA. 

Does that make sense?  I leave that to you. 

The case about the eating disorder is S.C. v. Round Rock ISD.  The case is not over, but in the most recent decision, on January 19, 2021, the federal court refused to dismiss the claims under 504/ADA. So liability of the district remains a possibility.  You can find that decision at Special Ed Connection at 121 LRP 2552.  The case of the SRO and the middle school girl is M.E. v. Alvin ISD.  On December 18, 2020, the 5^th Circuit dismissed the claim against the district.  The SRO is serving a prison sentence and may be held liable in a civil suit. But the district will not have liability because no one in the district, other than the SRO, knew about the sexual abuse, and the legal doctrine with the Latin name does not apply.  

DAWG BONE:  RESPONDEAT SUPERIOR: SOMETIMES IT APPLIES.  SOMETIMES IT DOESN’T.

Tomorrow: Toolbox Tuesday!!