A preliminary ruling in a federal court case in California demonstrates how vulnerable schools are to lawsuits alleging disability discrimination.  The school district may well eventually prevail on the merits of the suit, but the court’s refusal to dismiss the case early on increases school district exposure and cost.  This is not a case where the school district openly or obviously treated a student with a disability unfairly.  The evidence of bad behavior by the school was basically: 1) a coach called a student by the wrong name; 2) another coach yelled and cursed at him.  The court does not explain how any of that, even if true, had anything to do with the boy’s disability.  But the court ruled that these bare allegations were sufficient to create a disputed fact that would have to be resolved in a full blown and expensive trial.

Why should the court dismiss the case early on?  Let’s start with the fact that neither the student nor his parent asked for a reasonable accommodation to help him have a fair tryout for the basketball teams. Yes, there were two teams at two high schools where coaches rated his performance inadequate for varsity basketball.  In fact, in his deposition, the student testified that he did not need any accommodations, and the coaches treated him the same as the other students.  The boy felt he was a good enough player to make varsity. The coaches disagreed. This makes a federal case????

Let’s add this: the tryouts consisted of three two-hour sessions.  So it’s not like the coaches did not allow him to try out, or cut him short.  At both high schools the coaches reached the same conclusion: he’s not a good enough player to make the varsity.   The lawyer representing the student offered testimony from two coaches who did not work for the school district but had seen the student play in other venues.  They thought the boy’s skills were adequate for the varsity.

So we have coaches who disagree about the boy’s ability, which is not unusual.  But it is mystifying that the court would not give more weight to the input from the coaches who had observed him in tryouts for this particular team with these particular potential teammates. 

There is always more to a court case than appears in the court’s opinion, particularly when it is a ruling on a preliminary motion to dismiss.  I don’t write this Dawg post to criticize the judge, but rather, to let my readers know how vulnerable schools and coaches are to claims like this.  It doesn’t take much to get the case to trial.  When faced with a trial on a claim of disability discrimination, the school faces considerable expense.  Even if the case eventually settles, the price tag goes up when the court refuses to dismiss the case.

So be sure that your coaches are aware of who has a disability that might require accommodations in the tryout process.  Be sure that you are asking about that in whatever forms parents fill out to permit participation. Be sure that coaches and sponsors allow for accommodations, and document what they have done.  It looks to me, from this limited view, that these coaches did everything they were supposed to do. The school got sued anyway.  We can’t control what we can’t control.  So just focus on what’s within your control.

This one is Brown v. Elk Grove USD, decided by the federal court for the Eastern District of California on December 9, 2020. We found it on Special Ed Connection at 120 LRP 38965.

DAWG BONE:  STUDENTS WITH DISABILITIES ARE ENTITLED TO ACCOMMODATIONS IN EXTRA CURRICULAR ACTIVITIES.

Dear Dawg: Snort here. Rip Snort.  Intrepid Reporter and Friend of the Truth.  Dawg, we don’t mean to intrude, be rude, or crude. But we saw you on a Zoom call recently, and….well….you looked kinda funny, Old Friend.  Was it just the lighting?  SNORT.

Dear Snort: Your matchless reportorial instincts are right on target, Snort.  Yes, the Dawg has been featuring an unusual countenance of late.  It seems there was a cancerous blotch on the Dawg’s snout that needed attention.  It’s all gone now, and I am in tiptop good health.  But the doctors have been carving on my face like it’s a jack-o-lantern. There have actually been five, count ‘em, five surgeries. The first one was December 14^th and the final one is scheduled for today, after which I will proudly display my reconstructed proboscis for all to see.

It’s provided a teachable moment.  I see that I am vain.  I am unduly concerned about my personal appearance, and embarrassed to be stared at by strangers: “Mommy…what‘s wrong with that man’s face?”  I also see that I have sinfully taken pride in my thick, rich, head of hair, which is entirely a blessing, an undeserved gift from God. 

You may wonder what my hair has to do with a repair of my nose. Well…it turns out that they slice a patch of skin from the forehead and pull it down to repair the nose.  In my case the slice of forehead went all the way into the scalp.  So the skin currently on the side of my nose thinks that it’s on top of my head. So there is hair.  This has altered my shaving routine. 

My favorite Catholic priest, Richard Rohr (www.cac.org) often reminds us that it is good for the soul to endure a daily humiliation.  Since December 14^th, I have had a daily humiliation.  We can only hope I emerge from the ordeal with a fully repaired nose along with a more virtuous soul. 

Thank you for asking, Snort. 

DAWG BONE:

Tomorrow: A warning for coaches….

A first grade teacher took a leave in early January, 2016, after her 14-year old son committed suicide.  A little more than two months later she came back to work, hoping that a return to the classroom would help alleviate her grief. 

The teacher felt good about her performance in the classroom, but others did not.  Early in May the principal and superintendent met with the teacher to express their concerns.   It must have been a difficult conversation.  The superintendent asked the teacher to take on a paraprofessional position for the next school year. This would require the teacher to resign from teaching and accept an at-will position. The superintendent informed the teacher that if she did not resign, the superintendent would recommend the nonrenewal of her contract.    The superintendent left the meeting thinking that the teacher had agreed to resign and take the paraprofessional job.

But that was not the case.  The next day the teacher informed the assistant superintendent that she wanted to sign her contract for the next year—her teaching contract.  That was a surprise to the assistant superintendent who had heard from the superintendent that the teacher would be resigning and accepting a different position. More meetings ensued, but meanwhile the deadline for recommendations to the school board was fast approaching.

So the superintendent did, in fact, recommend nonrenewal of the teacher’s contract.  However, the board tabled the matter.  After that, the superintendent offered the teacher a teaching contract for the next year with a reassignment to Pre-K.  The teacher was supposed to sign and return the contract by May 24^th. She did not do that. Nevertheless, the board voted to renew her teaching contract in June.  In July, the teacher gave the school a written resignation: “To the extent that anyone thinks I do have a valid contract with FISD, I am giving my notice of resignation.”

To recap: we have 1) a teacher trying to recover from a catastrophic loss; 2) dissatisfaction by school administrators with the teacher’s job performance; 3) an effort to persuade the teacher to accept a different position; 4) a recommendation of nonrenewal; 5) inaction by the board on that recommendation; 6) an offer of re-employment with a deadline for response; 7) the teacher failing to meet that deadline; 8) the board deciding to renew the contract anyway; and 9) the teacher’s unequivocal resignation.

Then: the lawsuit.  The teacher claimed that the school district discriminated against her on the basis of disability and forced her to work in a hostile environment.  The court ruled in favor of the district on both claims.  The court did what it is supposed to do in an emotionally charged situation—it provided a cold-blooded analysis based on well-established legal standards. 

Hostile Environment.  As to “hostile environment” the court noted that “the alleged conduct neither rises to the level of severity…nor is the type of conduct that courts have found to constitute harassment.”  Key Quote:

When the record demonstrates a legitimate concern regarding an employee’s performance, as is the case here, “criticism…and even threats of termination do not satisfy the standard for a harassment claim.”  [The teacher] must concede that she was never prevented from doing her job, suspended, or formally disciplined.

Disability Discrimination.  The district asserted that the teacher did not have a discrimination claim for the simple reason that she had resigned voluntarily.  The school never took any “adverse employment action” against her.  However, that was not the end of it. The court pointed out that a resignation could be an adverse action if it amounted to a “constructive discharge.”  If “working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” That’s where the teacher’s own testimony was relevant:

Q.  Do you think that your working conditions were intolerable?

A.  Can you explain that?

Q.  Yeah.  Do you think that your working conditions were so bad that you had to quit?

A.  No. 

The court: “This admission is a showstopper.”

The case is Willard v. Friendswood ISD, decided by the federal district court for the Southern District of Texas.  The case is described in a magistrate’s report at 2019 WL 6790584. That report was approved and adopted by the district court at 2020 WL 1431523, and now it has been affirmed on January 5^th in a very brief and unpublished opinion from the 5^th Circuit, which can be found at 2021 WL 47308.

DAWG BONE: CONSTRUCTIVE DISCHARGE OCCURS ONLY WHEN THE JOB HAS BECOME INTOLERABLE.

Tomorrow: the Dawg’s snout is in the shop.

Toolbox Tuesday: Let’s talk about physical restraint.

In our firm’s Toolbox Training we offer ten “tools” to help you serve students with disabilities well and safely, even when they behave in ways that are noncompliant, disruptive, even violent.  Physical restraint is not one of the tools, but we do talk about it quite a bit.  We want to make sure that Toolbox participants understand that physical restraint is permitted when there is an emergency that threatens imminent harm of serious injuries to person or property.  Physical restraint should be used rarely, and should be done in compliance with our state’s rules and regulations, as well as those of your school district. The state guidelines are laid out at 19 T.A.C. 89.1053. 

Should you include the use of physical restraint as a technique to be used when you create a BIP (Behavior Intervention Plan) for a student?  I don’t recommend it.  A BIP (which is Tool #1) should include a list of the positive behavioral interventions, strategies and supports you will use to bring about an improvement in the student’s behavior.  Physical restraint is not a positive behavior intervention. It’s a last ditch response to an emergency.  It’s something we do when all other interventions and efforts to de-escalate have failed. You don’t have to authorize the use of physical restraint in a student’s BIP—it’s already authorized by state law.  Nor does it make sense to prohibit it, since you can never predict when it might be needed.  So in our Toolbox Training we emphasize that physical restraint should be neither authorized nor prohibited in a student’s BIP.   That doesn’t mean it shouldn’t be talked about.  In fact, parents should be well informed that physical restraint, along with other methods of behavior management that are authorized by state law and the Code of Conduct, may be used, even when a student has a BIP. 

The use of physical restraint often leads to litigation.  Three administrators in a Texas district were sued personally when a parent alleged that the use of restraint amounted to excessive force and an unreasonable “seizure” in violation of the 4^th Amendment.  The court dismissed the claims against each of the three:

[The student] shoved a school administrator, was visibly angry, arguably attempted to elope and was known to engage in self harm.  [The three administrators] could have reasonably believed the first restraint was necessary to protect [the student] from physical harm.  His resistance and escalation could have led [the three administrators] to a reasonable belief that [the student] now posed an imminent, serious threat of physical harm to others.

The “resistance and escalation” noted by the court involved a headbutt and a bite on the arm of the A.P.  Just another day in the life of a middle school assistant principal. 

One interesting wrinkle in this case: the parents were called to the school and arrived while the restraint was still going on.  The A.P. offered to release the student when the dad arrived, but the dad asked him to continue holding the student until he calmed down. That probably helped the court conclude that the use of restraint was reasonable.  What also helped was 1) the proper technique used by the A.P.; 2) the documentation of the incident by the school; 3) the fact that the nurse promptly looked at the student and found no serious injury; and 4) the good legal representation provided by Bridget Robinson and Jennifer Childress of the Walsh Gallegos Law Firm.  The case is Ashley v. Copperas Cove ISD, decided by the federal court for the Western District of Texas on December 9, 2020.  It’s reported at Special Ed Connection, at 120 LRP 38704.

DAWG BONE: RESTRAINT RULES: NOTICE, DOCUMENTATION, TRAINING. 

Tomorrow: Teacher’s testimony labeled a “showstopper.”

Reminder: It’s not too late to sign up for our firm’s HR Symposium, to be conducted online tomorrow. Go to www.walshgallegos.com, or send an email to info@wabsa.com. 

I don’t envy my professional colleagues who slog along in the legal fields of anti-trust, oil and gas, or commercial real estate.  They make lots of money, but the work…..boring.  And nobody wants to talk to you about your work.   We don’t relate, we don’t understand, we don’t care. 

But school law!! We deal with simple stories that present challenging legal questions in a context that everyone can understand.  So try this one on for size.  A kindergarten teacher wants to create a bulletin board featuring pictures of the families of each of the children in the class. What a wonderful idea!  The kids are told to bring a picture from home. It can be just the child and a parent, or both parents, or the extended family, or whatever. 

So Samantha brings a beautiful family picture.  She is standing beside her mom, who sits in a chair. Her dad stands behind the chair. All of them are beaming proudly at the camera. The mom is too as she sits in the chair. The mom is holding something close to her. It’s a baby. The baby is nursing. 

Not much of the mother’s breast is visible, but…well…this is a kindergarten class. Some of the children will not understand what is happening. Awkward questions might arise.  

So the teacher told the mother that this picture was not appropriate in the classroom, and would she please send another one. The mom was livid, threatening litigation over this prudish, anti-family, anti-mother decision.  This came up in a state that allows a woman to breastfeed her child in any location where she has the right to be.   It wasn’t Texas, but it could have been, as we have such a law also.   So….what to do? 

This very situation came up in a recent discussion on the COSA Listserv (Council of School Attorneys).  The group came to consensus pretty quickly on this one.  The lawyers thought that the right to breastfeed does not include a right to have a picture of the event posted in a public school classroom. Therefore, the teacher had the authority to reject the picture.  However, the group also felt that it would be important not to impose any punishment on the little girl. So, for example, if this was considered an assignment that carried a grade, the student should not get a bad grade based on the decision her parents made about what family picture to send.

I’ll take stories like that over complicated oil and gas royalty interests any day.  As I like to remind you educators: y’all are overworked and underpaid, under appreciated and over criticized. But the stories!

DAWG BONE:  LET’S LET THE TEACHER DECIDE WHAT’S AN APPROPRIATE PICTURE.

Tomorrow: Toolbox Tuesday!!

Our rules regarding physical restraint require that it be done by a person who is properly trained.  However, the very nature of physical restraint will inevitably lead to situations where a non-trained person does the restraint. After all, restraint can only be done in an emergency, and we just may not have a trained person available when the emergency happens.

Therefore, the rules provide for an exception:

Personnel called upon to use restraint in an emergency and who have not received prior training must receive training within 30 school days following the use of restraint.  19 T.A.C. 89.1053(d)(2). 

This came up in a recent federal court case.  The parents of the student who was restrained sued the principal, alleging that the principal was deliberately indifferent in getting the staff trained.  The legal theory is “failure to train.”  One piece of evidence: the assistant principal who did the restraint was not trained at the time, and did not get the training within 30 days thereafter. Oops. 

The court held that this fact alone was not enough to show “deliberate indifference.” The court pointed out that all of the administrators were extensively trained in behavior management, de-escalation techniques and classroom management.  So the failure to comply with this one administrative rule was not enough to pin liability on the principal. 

But consider how T.E.A. would have handled this if it came up in a complaint to the Agency.  T.E.A. does not determine liability and does not consider whether or not the school demonstrated “deliberate indifference.” Their approach is simpler: did the school comply with our state law?  No. It did not. The complaint would be validated.

So remember that.  Get that person trained, and keep your documentation to show that it was done in timely fashion.  We’ll tell you more about this case next week.

DAWG BONE:  IF THE PERSON WHO DID THE RESTRAINT WAS NOT TRAINED, THEY MUST BE TRAINED WITHIN 30 SCHOOL DAYS.

Yesterday’s Daily Dawg informed you that the U.S. Supreme Court is going to decide a case about student free speech when the student is not at school or a school activity.  Today: the background on the case.  I don’t think you will be surprised to hear how this major case grew out of a minor incident. 

When B.L. was relegated to the JV cheerleading squad for a second year, she vented her frustrations on Snapchat.  The snap included four F-bombs.  The objects of the four were 1) school; 2) cheer; 3) softball; and, just to make sure that her feelings were clear, 4) everything.  A second sentence noted how unfair it was that she and another girl, sophomores, had to spend another year on JV when a first year student was admitted to the varsity. 

The school removed B.L. from the JV cheerleading squad for that year, citing the handbook and agreement the girl had signed, promising to refrain from disrespect toward coaches or cheerleaders, and to refrain from profane language. This was a condition of being a cheerleader. 

The Third Circuit Court of Appeals held that the suspension from JV cheerleading infringed on B.L.’s right of free speech.  It affirmed a lower court ruling that ordered the school to expunge this incident from B.L.’s disciplinary record, and pay nominal damages along with attorneys’ fees.   A big win for the ACLU. A big loss for educators trying to foster important values.   

This one goes on the Dawg’s Sheesh-O-Meter.  Let me explain why.

The most important student free speech case is still Tinker v. Des Moines.  In that case our Supreme Court recognized that students have constitutional rights during the school day. They don’t lose those rights when they walk into the public school.  But the Court also cautioned judges to consider how the “special characteristics of the school environment” properly limit the exercise of those rights.  Unfortunately, the only “special characteristic” that the 3^rd Circuit respects is the need for safety. 

Here’s another “special characteristic” of the public school: it’s the only public institution in our society charged with teaching values to children. The 3^rd Circuit gives lip service to this, and then puts ridiculous and arbitrary limitations on how educators can teach values.  Look at this:

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.

Poppycock.  It’s dressed up in lofty language, but it’s unadulterated poppycock.  It undercuts the important work educators do every day to teach.  B.L. 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.  It remains a teachable moment, but now it’s one that teaches the wrong lessons. 

The coaches and administrators in the school district learned something.  They learned that what they thought was a fair application of the rules was, instead, leveraging the “coercive power” of the state.  I bet they thought that kind of language applied to a police officer kneeling on a man’s neck—not the one year suspension of a student from cheerleading. From JV cheerleading. 

Values are as much a part of the curriculum as math.  Every day, teachers teach math, reading, science, social studies, music, art, P.E……and along with all of that, values. Judges would never limit the teaching of math to “example, persuasion, and…encouragement.”  No. We expect educators to wield the “coercive power” of the state via assignments, grades, tests, all of which carry consequences.  But when it comes to teaching the value of keeping a promise, respecting others, and accepting that life sometimes treats us unfairly, this court confines educators to only a few tools: example, persuasion and encouragement.

No doubt B.L. and her parents learned some lessons from this as well. They could have learned that there are consequences for our actions.  That things will happen to us that we think are unfair. They could have learned something about resilience.  Learning any of those lessons would have required a degree of humility.  Instead they equated a momentary teenage temper tantrum over a trivial issue with Mary Beth Tinker’s courageous protest of the War in Vietnam. 

Sheesh.

This one is B.L. v. Mahanoy Area School District, decided by the Third Circuit Court of Appeals on June 30, 2020. We found it at 2020 WL 3526130. The Dawg hopes to see this decision reversed by the Supreme Court.  Stay tuned.

DAWG BONE:  VALUES ARE AS MUCH A PART OF THE CURRICULUM AS MATH.

Tomorrow:  A reminder about physical restraint

The Supreme Court will hear a case that will determine, perhaps once and for all, whether the “Tinker Test” applies to things that students say when not at school or a school related activity.   This will likely be one of the most important school law decisions for many years to come. 

The Supreme Court will take up this case because the Circuit Courts cannot agree on the standard that should be applied to student expression that takes place away from school. When students are at school or school activities, the Tinker Test applies.  Under the ruling of Tinker v. Des Moines, students enjoy the right of free speech unless there is a reasonable forecast of a material and substantial disruption of school or an infringement on the rights of others. If administrators “reasonably forecast” a disruption, they can take action to prevent that disruption even if it infringes on freedom of expression. 

But what about things that kids do and say when they are not at school?  Does the Tinker Test apply?  Sometime this year we will find out. 

The stakes are high.  With their ever present devices, students are always connected to each other and, to some extent, to the school.  Does a geographic boundary make any sense anymore?  Students can bully and harass other students in ways that are devastating, all from the privacy of their homes.  Is the school powerless to address this? 

So stay tuned.  The Court has agreed to take it on.  It will be fascinating to see how the justices line up on this.  Many of the conservative majority are fierce protectors of the First Amendment, but they also support lawful authority and the need for order and civility in our society.  The Dawg offers no predictions, but looks forward to following this case through briefs, oral arguments and a decision.  We will keep you posted. 

And to think: this all started with a brief teenage temper tantrum on Snapchat.  We’ll tell you about the facts tomorrow.  Warning: tomorrow’s Daily Dawg includes a rant about why the 3^rd Circuit’s decision in this case goes on the Dawg’s Sheesh-O-Meter. 

DAWG BONE: REMEMBER THIS CASE NAME: MAHANOY AREA SCHOOL DISTRICT v. B.L.. 

Tomorrow: The facts of the case, the 3^rd Circuit’s decision, and a rant.

When I summarize a “Tool #3” case it all sounds so simple.  The kid was doing poorly. The school proposed moving him to an MRE (More Restrictive Environment), the parent disagreed, but the court sided with the school. Simple.  There are three things to prove:  1) the current arrangement is not working; 2) we have tried; and 3) this will be better for the student.  In this particular case the court concluded that the student was making very little progress and engaged in inappropriate behaviors in the classroom.  The student was unable to do the level of work the other students did, and was consuming too much of the teacher’s time. That’s how the hearing officer saw it, and that’s how the court saw it. 

However, this quick summary hardly captures the amount of effort that goes into a Tool #3 case.  Tool #3 in our firm’s Toolbox Training refers to an Educational Change of Placement Without Parental Agreement. 

What kind of effort?   First, the effort to serve the student well in the LRE.  Educators should work with the parents and brainstorm among themselves in an effort to improve the student’s progress in the less restrictive environment. The IEP must be implemented with fidelity.  Educators should be considering what supplemental aides and services might be helpful.

Second, the service providers need to document their efforts. The paperwork should make it clear that IEPs were implemented properly, that the staff met periodically to look for new ways to improve the situation, and that the parents were kept in the loop.  Remember that a Tool #3 case starts with the recognition that things are not going well. The parents should hear about that long before we propose a change of placement at an ARD meeting.

Third, the lawyers should be involved.  If the parents and the school agree that a change of placement is called for, then the change is easily implemented with an ARD meeting that ends in consensus. That’s Tool #2. But when the parents disagree, the school has to be prepared to defend its proposal in a due process hearing. Call the lawyer.

All of that should take place prior to the ARD meeting where the change is proposed. After the ARD, the school needs to prepare for a hearing.  That will involve a lot of time, energy, and usually, considerable stress. 

So there is nothing easy about a Tool #3 case, despite how it looks in the Daily Dawg summary when the dust has settled.  This one is E.B. v. Baldwin Park USD, decided by the federal court for the Central District of California on August 10, 2020. We found it in Special Ed Connection at 77 IDELR 164.

DAWG BONE: TOOL #3: HARD WORK.

Tomorrow: Big news at SCOTUS!

You have a lot of major personnel decisions to make this spring, and we’d like to help.  Thus it’s time for our law firm’s annual HR Symposium.  In the past we have done this via multiple presentations at ESCs and other locations. But this year…well…you know. So it’s all happening online this year on one date: Groundhog Day—February 2^nd!! If you are not yet signed up, you can do so by going to our firm’s website: www.walshgallegos.com, or by sending an email to info@wabsa.com.

This year we will pay particular attention to how those issues that are pandemic-related, such as the use of employee medical leave, and requests for accommodation, impact the usual HR issues—planning for spring personnel decisions and everything that comes with that.  We will also talk about current and future developments and HR complications surrounding vaccinations and telework.  Hope to see you there!

DAWG BONE: HR SYMPOSIUM: TIMELY HELP FOR IMPORTANT DECISIONS.

Tomorrow: Toolbox Tuesday!!