How do you like your deli meat sliced? I always ask for it to be “thin sliced.”  The Black Forest Ham just tastes better that way.

I’m cultivating the habit of “thin slicing” my sense of gratitude also.  This means that I am consciously thinking of and openly expressing gratitude for the thousands of little things and brief moments that so often pass by without notice.  So rather than the usual: (grateful for good health, family, a sunny day, etc.), I try to get more specific.

That one bird just outside my window.

The absence right now of obnoxious leaf blowers disturbing the silence.

The high note that Diana Ross hits in Baby Love.

The absence of pain in my knees when I go up and down stairs.

Spotify.

That time when Vince Young crossed the goal line against USC.

That my mom was a teacher.

Steve Kornacki.

The way some dogs wag their entire bodies.

That toddler reaching up to hold her daddy’s hand.

The vocabulary I learn from watching British crime shows.

Speaking of British shows: Ted Lasso.

Speaking of vocabulary: dictionaries.

Self-checkout at the HEB.

How the people who work at Home Depot don’t mention what an idiot I am until after I leave the store.

The Daily Dawg will be taking a break next week.   We will resume on November 30^th.  I know most of your schools will be closed next week, and so I wish you a time of rest and renovation.  We sure need it!  And let’s remember: despite all that has happened in 2020, we have much to be grateful for.

DAWG BONE: HAPPY THANKSGIVING!

Before you enter into a contract with a vendor that will be accessing student data you might want to check out www.studentprivacypledge.org.  The Student Privacy Pledge is a commitment to maintain confidentiality and otherwise guard the privacy of students and parents.  According to the website, 445 companies that work with schools have signed this pledge.  Requiring your vendors to sign The Pledge, along with having strong data privacy and confidentiality provisions in your contracts go a long way toward demonstrating your school district’s commitment to compliance with FERPA and other privacy laws.

If you have questions about this, or how it might be incorporated into contracts, please call one of the lawyers in our firm. We know about this stuff, and will be happy to help!

DAWG BONE: I STILL THINK “FERPA” IS THE NAME OF SOME LITTLE GIRL IN EAST TEXAS.

Tomorrow: How grateful are you?

A student in Austin ISD sued the district alleging that she was harassed by other students based on her race while school officials turned a blind eye.  The court did a painstaking review of numerous specific incidents and ruled in favor of the district with regard to 12 of them. In each of those instances, there was evidence that the district took some action to address the alleged harassment. Thus the student would not be able to show the “deliberate indifference” necessary to prevail.  However, there were three other incidents for which the record did not reflect a district response, and so the court allowed the case to proceed with regard to those three incidents. 

It's another part of this case that I want to bring to your attention. The plaintiff alleged that the district failed to train its staff properly. This type of claim is often made.  The argument is that the district displayed “deliberate indifference” by failing to train its staff about legal issues that were sure to come up—such as allegations of harassment based on race, sex, disability or religion.  In this case, however, AISD marshaled sufficient evidence to convince the court that this claim lacked merit:

Superintendent Cruz, AISD’s principals, and AISD’s central staff “had pretty extensive training and discussions” related to “training on issues surrounding race, race relations [and] bias.”  Cruz further elaborated that AISD’s principals and vice-principals receive race-based discrimination and investigation training, as well as training on how to foster a “positive culture” that includes “cultural proficiency and inclusiveness.”  Besides principal training, AISD has its principals train their staff in “all things pertaining to student safety,” including training related to “discrimination based upon race or nationality.” 

As this case illustrates, that kind of training is important. The failure to provide it can have legal consequences. 

The case is Sneed v. Austin ISD, decided by the federal court for the Western District of Texas on September 29, 2020.  We found it at 2020 WL 5951508.

DAWG BONE:  TRAINING MATTERS. 

Tomorrow: Do you know about the Student Privacy Pledge?

Our firm’s Toolbox Training is all about how to serve students with disabilities who present challenging behaviors.  The goal is to serve each student appropriately while maintaining a safe and orderly school environment.  When we provide the training we often emphasize the importance of documentation.  Obviously it’s important to have all of the legally required paperwork filled out properly. Beyond that, though, good documentation from the school reflects the Three C’s: it shows how the school has been CREATIVE, CARING and COMMUNICATIVE. 

CREATIVE: Your documentation should make note of efforts to seek assistance from knowledgeable sources both in the district and outside the district. Did you provide or seek training?  Did you reach out to the Service Center, or to a local university for assistance in how to serve the student?  Did you brainstorm with the staff and with the parents?  Dates and times should be noted to make it clear that the district was searching for creative approaches.

CARING: The bromide that all of you have heard is “They don’t care how much you know until they know how much you care.”  I put that in the category of “trite but true.”  Your documentation, including emails and texts, should never lose sight of the fact that we are seeking to serve an important student.  To say “we care about your child” is not what this is about.  Anyone can say that.  In fact, everyone does say that. More significant is the timeliness and courtesy of your responses to parental requests. And your responses to parent complaints.  A caring educator demonstrates an interest in hearing and understanding before responding.

COMMUNICATIVE: The 5^th Circuit measures FAPE with a four-part test, one part of which is about collaboration and communication among key stakeholders.   Your documentation should reflect your communications internally and externally.  We don’t keep secrets from the parents. We recognize and honor their legal right to be fully informed of the school activities of their child.  Our communication should be, as much as possible, jargon-free and easily understood. 

DAWG BONE: CREATIVE, CARING AND COMMUNICATIVE. THAT’S US!

Tomorrow: How important is training?

WE’RE ZOOMING WITH THE DAWG THIS FRIDAY AT 10! BE THERE!!

When court cases involve long hair, football, and promises to God, how can the court avoid all of those juicy issues and go off on some boring procedural tangent?  Sigh.  Disappointing, but that’s what we have in Gonzales v. Mathis ISD. 

The parents made a promise to God that they would leave a lock of hair on each of their two sons uncut.  This promise was in exchange for God’s protection and care when one of the boys had a potentially life-threatening illness. God came through on this one, and so the parents and their sons took the “promesa” very seriously. It was a sincere religious commitment.  However, the long hair violated the school dress code for extracurricular participation, and so the school barred the boys from participating.

The parents filed suit alleging that the district had violated the Texas Religious Freedom Restoration Act (TRFRA).  The district court held that the parents were likely to prevail on this case and so it issued an injunction allowing the boys to play football and participate in other UIL sanctioned activities while the suit was pending.  The district appealed to the 5^th Circuit and that’s where the procedural issues came to the fore. 

It turns out that you can’t just waltz on down to the courthouse and file suit under TRFRA.  You have to give the school a “heads up”--notice 60 days in advance.  That provision is designed to give the governmental agency some time to address the concern and avoid litigation.  There is an exception: if the government is about to take “imminent” action that “threatens to substantially burden the person’s free exercise of religion” and the person was not informed of this, or otherwise knew about it, in time to provide the notice.

In December of 2017 the district informed the family that both boys were barred from all extracurricular activities, effective immediately.  The parents promptly filed suit without giving the 60-day notice.  However, the suit was originally filed on behalf of only one of the boys.  Let’s call him Brother Number One.  Brother Number Two was added to the suit in March—more than 60 days later.  Thus the court held that Brother Number Two could have given 60-days notice prior to filing suit.  Therefore, he should have.  The court lacked jurisdiction to consider his case.  Brother Number One, however, was facing an imminent threat to his religious freedom and was justified in suing without giving the notice. 

The court hints that this kerfuffle will make little difference in the end:

[Brother Number Two’s] noncompliance with TRFRA’s pre-suit notice requirement requires that we vacate the district court’s preliminary injunction as to him.  This disposition may prove to be of little practical consequence; both brothers are constrained by MISD’s hair policy and should the district court ultimately conclude that the policy is invalid under TRFRA, [Brother Number Two] may enjoy the benefits from that ruling and the strong protections afforded students by TRFRA….

So the next move may be a ruling on the merits.  Does this policy substantially burden religious exercise?  Stay tuned.  This one is Gonzales v. Mathis ISD, decided by the 5^th Circuit on October 22, 2020. 

DAWG BONE: UNDER TRFRA YOU HAVE TO TELL THEM YOU ARE GOING TO SUE BEFORE YOU SUE.

Tomorrow: The Three C’s of Documentation

Next Friday at 10 we will be Zooming with the Dawg, and I’d love to get some ideas from you Loyal Readers as to topics you’d like to hear about. So send me an email at jwalsh@wabsa.com.   The person who makes the best suggestion will get a six-month extension of their Daily Dawg subscription.  So let me hear from you!

Not signed up for Zooming with the Dawg yet?  Just send an email to info@wabsa.com.  It’s freebie for all Daily Dawg subscribers.

One other thing for today: now that the election is over it’s time to start lobbying the legislature in advance of the 2021 session.  The Dawg hereby proposes The Double Trouble Double Credit Bill.  This bill would give every educator who serves through the entire pandemic DOUBLE CREDIT for TRS purposes.  We talk a lot about how much we appreciate our teachers as well as all the other people who make our schools work.  So let’s do something about it!  Everyone acknowledges that serving in the time of the Great Pandemic has been twice as hard, at the least. So let’s do something practical to recognize the hard work of those folks.  Double TRS Credit starting with March 15, 2020 and extending through all of the 2020-21 school year.  And give the Commissioner the authority to extend it beyond then if it appears that we are not yet out of the woods.

Waddayathink?

DAWG BONE:  YOUR TURN. 

DEAR DAWG: Snort, here.  Rip Snort.  Intrepid Reporter and Friend of the Truth. In all the controversy over mask-wearing Your Intrepid Reporter believes we may be overlooking a very simple and straightforward statement in the Texas Education Code. How this has gone unnoticed for this long makes one wonder: who is involved in this coverup?  We intend to ferret out the truth. 

As a student of the law, I expect you are already well aware of the T.E.C. provision I refer to.   Section 37.0023 prohibits certain “aversive techniques” including anything that

impairs the student’s breathing, including any procedure that involves….(B) obstructing the student’s airway, including placing an object in, on, or over the student’s mouth or placing a bag, cover OR MASK over the student’s face;  T.E.C. 37.0023(a)(7)(B), Emphasis added. 

What could be more clear?  A communication on your blog would be helpful in “umasking” this coverup.  SNORT.

DEAR SNORT: Always good to hear from you, Snort, but we think you perhaps failed to read the entire statute.  The statute provides 13 examples of techniques that are prohibited, but only if they fit the umbrella definition of “aversive technique” which is:

A technique or intervention that is intended to reduce the likelihood of a behavior reoccurring by intentionally inflicting on a student significant physical or emotional discomfort or pain.  T.E.C. 37.0023(a). 

No one is requiring students to wear a mask because they want to inflict significant discomfort or pain.  They do it in order to avoid the spread of a dangerous virus. Sort of different, dontcha see?

Keep at it, Intrepid Reporter.  There is certainly a Pulitzer-Worthy Scoop out there for you somewhere, but this ain’t it. 

DAWG BONE: NO.  REQUIRED MASK WEARING DURING A PANDEMIC IS NOT AN AVERSIVE TECHNIQUE. 

Tomorrow: Lobby now!

The Gold Standard for providing a Free Appropriate Public Education is student progress.  Courts have been known to disregard procedural errors by the school district if there is evidence of academic progress.  That makes sense. After all, it should be about results more than process. 

When demonstrating that a student is making progress the school often points to the grades. This is particularly important for students with disabilities who are expected to achieve at grade level.  When the classroom teachers report that the student is passing, mastering grade level material on par with non-disabled students, this is strong evidence that the school is serving that student well. 

But let me offer a word of caution.  Principals should make sure that the grades are fairly earned.  In a case from Wisconsin the district argued that the student received FAPE, largely based on his passing grades and promotion from one grade to the next.  The court noted that this is normally good evidence of progress, but not in this case:

That assertion was premised, however, on the passing grades and advancement being accurate reflections of the student’s mastery of grade level content.

Here, J.L.’s English teacher did not factor his writing into his grade, and other tests of his writing ability showed him writing well below grade level. Thus, for this child, grades and advancement ring hollow as indicators of progress….

This is a good one to talk to teachers about.  Writing was the area where the student’s disability most affected him, and the English teacher simply discounted his failure to turn in assignments.  So the student got passing grades, but the court found those grades to “ring hollow.”

It might be particularly tempting for teachers in the COVID era to be a bit generous with grades, considering all of the difficulties kids, parents and teachers are encountering.  However, the law requires that we give parents an honest assessment of a student’s mastery of the material.  With regard to students with disabilities the failure to do so can have legal consequences.

The case is Grafton School District v. J.L., decided by the federal court for the Eastern District of Wisconsin on July 8, 2020.  It’s reported at 76 IDELR 281, Special Ed Connection.

DAWG BONE: SAY IT NICELY BUT SAY IT ACCURATELY.

Tomorrow: We hear from Rip Snort!

While the principal searched for the missing Red Doritos, an eight-year old and a School Resource Officer struggled over a Capri Sun juice box.   This all happened in the principal’s office, where the third grader had been brought because of his misbehavior on the playground.  Just a typical day in the elementary school.  Here’s what happened in the office:

[The boy] continued his temper tantrum—flailing at the officers, screaming that he wanted his “red Doritos,” and trying to escape the office. At one point [the boy] dove under a table and unplugged cords from the wall.  According to [the boy], the officers pulled [him] out from under the table by his feet and ankles.

Obviously, the Red Doritos were pretty important to the boy, so the principal went out on a search mission.  Meanwhile, two SROs dealt with the student:  Baez, (The Veteran) and Santora (The New Guy).  According to the kid, The Veteran, without any provocation, “picked up the juice box and sprayed it on” him.  According to The Veteran, the kid intentionally sprayed the juice box on both officers, at which point The Veteran tried to take it back, and in the struggle, the kid sprayed himself.  The court’s opinion does not tell us what flavor of juice it was. 

This incident alone makes this case a candidate for a Made-For-TV movie, but it gets better. The New Guy had a change of heart:

Nonparty Santora [New Guy] originally corroborated Baez’s [Veteran] version in incident reports.  However, Santora later recanted. In his deposition, Santora testified that, in creating the incident reports, Baez had pressured Santora to present the facts in a light favorable to Baez.  But Santora testified that the juice-squirting incident actually transpired as follows:

From what I saw, Tony [the Veteran] put the straw in.  It looked like he may have taken a sip, I’m not sure.  He gave the juice box to the kid. The kid grabbed it with two hands, started spraying it all over Tony, the desk, slightly me.  Tony grabbed it, ripped it out of the kid’s hands, and sprayed it up and down on the kid’s face. (Emphasis added).

Now here is the test, Readers.  Consider the little boy’s version of events.  Assume that it happened exactly as he said it happened.  Is your conscience shocked?  A student in a public school has a right to bodily integrity.  Previous cases have established that certain types of misconduct by adult school employees violate that right.  Sexual molestation is at the top of that list.  But what about a spray of juice to the face?  The standard in the 6^th Circuit, where this case occurred, is if the “conduct is so brutal, demeaning, and harmful as literally to shock the conscience.”

So waddayathink? Is your conscience shocked?  Let me add one more important factor: the boy was diagnosed with anxiety and ADHD and had been a behavior problem since first grade. 

This court held that it was too close a call to toss the case out.  The SRO’s Motion for Summary Judgment was denied.  Moreover, the court held that the law in this area is “clearly established,” meaning that the SRO was not entitled to qualified immunity. Although there are no known cases involving juice-squirting to the face, the court reasoned this way:

…a reasonable school employee knew or should have known that actions taken with the intent to injure a special education student and without any pedagogical purpose were constitutionally impermissible, even if the specific actions in question—such as juice-squirting—had not previously been held unlawful.

This is Toolbox Tuesday, and so I should point out that none of the ten “tools” involve juice-squirting.  The Toolbox puts the emphasis on positive behavioral interventions via a BIP, especially when a young child is out of control.  As this case illustrates, when the grown-ups also lose control, there can be serious consequences.

It’s Kouider v. Parma City School District BOE, decided by the federal court for the Northern District of Ohio on August 19, 2020.  It’s reported in Special Ed Connection at 77 IDELR 71 (N.D. Ohio 2020).

DAWG BONE:  EVEN IF SQUIRTED, DO NOT SQUIRT BACK.

Tomorrow: Good grades don’t always mean good evidence….

Hey, Loyal Readers, I hope you noticed that last week we told you about a teacher contract nonrenewal case recently decided by T.E.A. in favor of the school district (see Daily Dawg, November 5). The week before that we highlighted how a positive evaluation for a weak employee can hamstring your efforts to improve the staff (see Daily Dawg October 29).   These cases illustrate how important it is for administrators to have the Essential Knowledge and Skills to make tough personnel decisions.

We can help with that. On November 17 our firm offers an on-demand webinar about Employment Contract Decisions.  Attorneys Robb Decker and Leandra Costilla Ortiz will lead the discussion with an emphasis on the practical steps that lead to a defensible decision.  Improving the quality of the staff has a direct impact on the quality of the services you provide to the students, and it’s one of the few things that you have a lot of control over.  School administrators select, develop, and evaluate staff in order to make decisions about retention and nonrenewal.   All of that has legal implications, so I hope you will join Robb and Leandra for this informative and practical guide to the key issues.  Sign up at www.walshgallegos.com, or send an email to info@wabsa.com. 

DAWG BONE: THESE DECISIONS ARE MADE IN THE SPRING, BUT PREPARATION BEGINS NOW.

Tomorrow: The Case of the Red Doritos….