What is going on in Jersey????  This lawsuit is all about delays in conducting special education due process hearings.   The complaint cites cases of hearings delayed by anywhere from 75 days to 836.  836!  That’s two years plus 106 more days!  The court noted that slight delays from the 45-day timeline may be viewed as excusable procedural errors, but other cases cross the line from a procedural error to a substantive one. These lengthy delays crossed that line. 

No kidding.  Sheesh!  The case is C.P. v. New Jersey DOE, decided by the federal court for New Jersey on May 22, 2020.  We found it at 76 IDELR 214.

DAWG BONE: BE GRATEFUL FOR T.E.A.

Jaylon Sewell alleges that he was harassed all year by the dean of students, starting on the first day of school.  That day the dean asked teachers to send any student to the office who had dyed hair.  The dress code prohibited “hair dyed with outlandish colors.”   The student claims that the hair at Neville High School replicated the rainbow, that all sorts of kids, white and black, boy and girl, had dyed hair of “outlandish” colors.   Jaylon’s hair was described as “two-toned blonde.”  I have never thought of blonde as an “outlandish” color, but apparently someone did. Jaylon was  sent to the office.  

It turns out that the only students who were sent to the office that day were kids like Jaylon--African-American males, and Jaylon was the only one actually disciplined for violating the dress code. He was suspended on day one.

Jaylon’s mom was quick to complain of discrimination, meeting on the next day with the principal and the superintendent.   Jaylon returned to school, where he claims that the dean of students began a campaign of verbal abuse, calling him a “thug” and a “fool.”  Jaylon alleges that the man asked him if he “was gay with that ‘mess’ in his head.’” 

The school suspended the student and recommended his expulsion in November.  Jaylon alleges that was all based on phony charges cooked up by the dean of students.  The school board voted not to expel, finding the timing of events suspicious.  This all hit the media in the spring semester.  As a result, Jaylon alleges that the harassment picked up steam, leading him to be distraught and traumatized.

Those are the allegations in the lawsuit.  They have not been determined to be true.  No testimony has been taken, and no one has been subject to cross-examination.   But the court was ruling on the school’s Motion to Dismiss for Failure to State a Claim.  In that situation the court is required to assume that all of the allegations are true, and to make all reasonable inferences from those allegations that would support the case.  Courts are not going to toss a case out at an early stage unless they are sure that the allegations cannot plausibly add up to a legitimate claim.

The court concluded that Jaylon’s allegations plausibly make a case of racial discrimination in violation of Title VI and sex discrimination in violation of Title IX.  How did the court come to that conclusion?

WAS IT ABOUT RACE?  As to the racial angle, the court said:

First, it is plausible that [the dean’s] harassment of [the student] stemmed from a discriminatory view that African-American males should not have two-toned blonde hair.  Most obviously, [the dean] treated [the student] differently from students who were not black males.

And he called [the student] a “thug,” a term that could be race-neutral or racially charged, depending on context….At the pleading stage, [the student] is entitled to the latter characterization.

WAS IT ABOUT SEX?  There were sufficient allegations to sustain that charge also:

[The dean] asked if [the student] “was gay with ‘that mess’ in his head,” which could imply animus toward males who do not conform to stereotypical notions of masculinity.

HOW BAD WAS IT?  This was a “hostile environment” case.  To prevail on that theory you have to allege that the harassment was really bad. The legal verbiage is “severe, pervasive, and objectively offensive.”  The court said that Jaylon passed that test:

Intense verbal abuse that comes from an authority figure—like a school administrator—and persists for most of the school year can constitute a hostile environment.

DID THE SCHOOL KNOW ABOUT IT?  The superintendent knew about Jaylon’s allegations and that was enough to put the district on notice.  The mom had spoken directly to the superintendent, and filed a grievance with the board, which the superintendent knew about.   Not only did the superintendent have information about the dean’s alleged harassment of the student, he was in a position to put a stop to it.  Thus an “appropriate person” allegedly knew what was happening and could have done something about it. 

WAS THERE “DELIBERATE INDIFFERENCE”?  This is where most “hostile environment” cases fall short. The court noted that “Deliberate indifference is a tall hurdle.” But at this early stage, the allegations are that the district did nothing after being put on notice. That’s enough to keep the case alive.  Key Quote:

Doing nothing is the classic case of indifference.

Lessons?  Harassment based on the failure to conform to gender stereotypes is the same as any other kind of sexual harassment.   “Thug” may be viewed by a court as a racially-charged word.  Verbal abuse by an administrator is a serious thing.  The case is Sewell v. Monroe City School Board, decided by the 5^th Circuit on September 10, 2020.  We found it at 2020 WL 5416305.

And if anyone knows if Neville High School is named for Aaron Neville, please let me know. I did some Google research but did not find the answer.

DAWG BONE: MAYBE IT’S NOT SUCH A GREAT IDEA TO BAN “OUTLANDISH” COLORS OF HAIR.

Tomorrow: One for the Dawg’s Sheesh-O-Meter!

The 5^th Circuit has affirmed a ruling in favor of Dallas ISD in a case involving excessive physical punishment.  The mother of an 11-year old girl alleged that her daughter suffered physical injuries after a P.E. coach required the girl to do 260 “ceiling jumps.”  Here’s how the court defined this exercise:

A ceiling jump involves squatting down with both hands and hips to the floor, then jumping up with one’s hands toward the ceiling.

When I was in junior high, the coach called these “squat thrusts.”  Some folks apparently call this form of exercise “burpees.” Whatever you call it, it’s no fun, and doing it 260 times without a break, as a result of failing to “dress out” for P.E. could be classified by some as an “aversive technique” prohibited by Texas law.  But the case in Dallas arose in 2016, before that law was enacted.  The mother sued Dallas ISD, the coach, the principal and a school nurse, alleging that her daughter’s constitutional rights had been violated, and that the district violated Title IX.

The lower court dismissed the suit entirely in two opinions.  In a nutshell, the message from the court was that a suit like this belongs in state court, not federal court.  Did the coach inflict an excessive punishment?  DISD investigators determined that he did.  That could lead to personal liability for the coach in state court.  But his actions did not violate any constitutional rights. Nor did the district engage in intentional sex discrimination in violation of Title IX

The only issue appealed to the Circuit Court was about sex discrimination under Title IX.  But the allegations in the case expressly said that the teacher treated the boys and the girls the same.  So how could treating the kids the same be discriminatory?  The court tells us that the Petition:

alleged that [the teacher] treated boys and girls the same even though professional standards of care required him to treat them differently.  She asserted that [the teacher’s] P.E. program violated Title IX because it did not consider the physical and metabolic differences between boys and girls.

Give us our due—we lawyers are a clever bunch.  Only a clever lawyer can take a statute that requires equal treatment of boys and girls and then assert that a teacher who treats the boys and girls the same has violated the statute.  Clever. But clever does not mean correct.

The lower court held that this argument “is just another way of alleging disparate impact” which is a theory of liability that Title IX does not permit.  The district was not liable because the district did not intentionally violate Title IX. The 5^th Circuit affirmed that reasoning and that result.

The lower court’s first decision was on June 21, 2019 and can be found at 2019 WL 2568681.  It’s in the Daily Dawg on September 16, 2019.  Its second decision came out on December 30, 2019, and is at 2019 WL 7305216.  That one was reported in the Daily Dawg on February 24, 2020.  The 5^th Circuit decision was issued on September 10, 2020. The 5^th Circuit opinion is “unpublished” which means it will not show up in the official reports, and is not to be cited as precedent. But it sure makes for interesting reading.  All three opinions are styled Poloceno v. Dallas ISD, 2020 WL 5494511. 

DAWG BONE: IF THEY REPEATEDLY FAIL TO “DRESS OUT” MAYBE WE COULD COME UP WITH SOMETHING OTHER THAN 260 BURPEES.

Tomorrow: a major decision from the 5^th Circuit

It’s Toolbox Tuesday here at Daily Dawg HQ.  When I am looking for a case to tell you about on Toolbox Tuesday I look for passages in the court’s opinion like this:

E.C.’s disability manifests itself in aggressive, disruptive, disobedient, offensive, and sometimes violent behavior.

Yep. That’s a Toolbox case! The Toolbox is our firm’s one-day training program designed to help you serve students like E.C.  There are three lessons we can learn from this Toolbox case from Kansas.

PHYSICAL RESTRAINT.  First, you don’t have to do a manifestation determination prior to using physical restraint.  Nor do you have to do one after you use physical restraint.  In this case the parents alleged that the district used restraint to deal with behavior that was a manifestation of disability.  The parent argued that this amounted to disability discrimination in violation of Section 504 and the ADA.  The court refuted that argument, citing 10^th Circuit precedent that permits certain types of “regulation” of conduct even when the behavior is a manifestation of disability:

Even though E.C. alleges that all of his actions were “manifestations of his disability,” the 10^th Circuit has specifically held that “a student’s conduct may be regulated,” even if it is a “manifestation of his disability.”

This is a fundamental point that is often overlooked.  The manifestation process is required only when the school proposes a disciplinary removal that amounts to a change of placement.  That’s Tool #6 in the Toolbox. Other forms of regulation of conduct are permitted, even when behavior is a manifestation.

Of course that does not mean that physical restraint is an unimportant event.  Every instance of physical restraint is an indication that the student’s behavior plan is not working as well as we would like.  The parents should be promptly informed.  A record of it should be kept in the student’s file, and the ARD Committee should discuss the situation at the next annual ARD if not before.  Our state laws and regulations require all of these common sense steps.

THE LABEL.  Another thing we learn from this case is that the disability label is less important than the services provided to the student. That’s hardly news. We have seen many court cases making the same point.  But here we have another parent determined to have the autism label on the paperwork.  The court held that the label was “immaterial.”  The court affirmed the ruling of the hearing officer who heard multiple witnesses testify how the IEP addressed the special needs of the student appropriately.  Thus the label attached to the IEP was not important:

E.C.’s IEP contained extensive provisions, including a detailed BIP, and the record shows that the behaviors it sought to address and improve were the same, or substantially the same, as those that witnesses testified are associated with autism.

PARENTAL ERROR.  One more lesson, and it’s another familiar one: parents act unwisely when they refuse to allow the school to conduct an evaluation.  The court held that the parents were “estopped” from complaining about the lack of an autism label on the IEP because they repeatedly refused to consent to an evaluation requested by the school.

This is the case of E.C. v. USD 385 Andover.  There are two reported district court decisions for this case, at 74 IDELR 94 and the more recent at 76 IDELR 212. Both were decided by the federal court for Kansas, the second one on May 27, 2020.

DAWG BONE: “ESTOPPED” IS A GREAT LEGAL WORD, BUT ONE WE RARELY ENCOUNTER IN SPECIAL EDUCATION CASES.

Tomorrow:  Ceiling jumps, squat thrusts and burpees at the 5^th Circuit

Normally, judges are quite interested in what an expert has to say.  If a witness qualifies as an “expert witness” their testimony will be important.  Expert witnesses are often called in education cases. There can be experts on reading, autism, behavior, child development, etc.  But in a recent decision the 9^th Circuit held that the lower court was correct when it refused to even consider the input of an expert. 

Context: this was a suit brought by an organization of Hindu parents who believed that the California State Standards disparaged that religion, and treated it unfavorably compared to Christianity, Judaism and Islam.  They produced the report of an expert on the history and beliefs of the Hindu faith.  The court said, in effect, “we don’t care what the experts think. What do ordinary people think when they read the State Standards?”  Key Quote:

We must evaluate the Standards and Framework from the perspective of an objective, reasonable observer, and not that of an academic who is an expert in the field.

With that perspective in mind, the court found nothing disparaging or unequal in the treatment of the Hindu faith compared to any of the other world religions. 

The more important lesson of this case is that courts are not going to micromanage school curriculum decisions, or allow a small group of parents to do so.  This is just one of many instances in which a well-intentioned group of parents try to dictate what is taught in the public schools.  In this ruling the 9^th Circuit relied heavily on an earlier case in which the plaintiffs were offended by racially derogatory terms in books like Huckleberry Finn.  Those parents were rejected, as were the Hindu parents. 

There are several good quotes from this decision:

….once parents select a school for their child, parents cannot “compel public schools to follow their own idiosyncratic views as to what information the schools may dispense.”

Parents therefore do not have a due process right to interfere with the curriculum, discipline, hours of instruction, or the nature of any other curricular or extracurricular activities.

One judge added a concurring opinion that included this:

Plaintiffs’ efforts to wring an Establishment Clause violation from subtle differences that they perceive in the curricular treatment of various religions does not withstand scrutiny, and, if accepted, would paralyze educators in their lawful objective of treating religion as a topic relevant to world history.

This one is California Parents for the Equalization of Educational Materials v. Torlakson, decided by the 9^th Circuit on September 3, 2020.  We found it at 2020 WL 5247607.

DAWG BONE:  IN CALIFORNIA IT’S THE STATE STANDARDS.  IN TEXAS IT’S THE TEKS. 

Tomorrow: Toolbox Tuesday!!

Hope you can join Blake Henshaw and I at “Zooming with the Dawg” at 10:00 this morning.  It’s a freebie for Daily Dawg subscribers.  If you are not signed up yet, send an email to info@wabsa.com.

Maybe today we will talk about the utter unfairness of the fact that we men are still required to register for the draft while you women are not. What’s with that???  I thought we were living in the Age of Aquarius and Gender Equity.  Where is Title IX on this?  If you have been a regular reader you know that we have reported several cases of late about sex discrimination.  The Supreme Court ruled that “sex” includes sexual orientation and transgender status.  Transgender kids continue to prevail in litigation against school districts.  A boy with long hair in a Texas district convinced the court that the dress code discriminated on the basis of sex. 

And yet.  At age 18, a young man is required under penalty of law to register for the draft, even though no draft exists.  You still have to turn yourself into the federal government to be put on the list.  You have to let the government know that you are willing to suffer and die for your country if called upon.   Young women turn 18 and do not have this on the to-do list.  Blatant discrimination based on sex.  Where is the righteous indignation from the women’s groups?  

This is not just a random rant.  The issue came up recently before the 5^th Circuit.  The National Coalition for Men sued, claiming that the law requiring only men to register for the draft was unconstitutional.  The 5^th Circuit noted that the U.S. Supreme Court dealt with the same issue in 1981 and ruled that the male-only draft was legal, Rostker v. Goldberg, 453 U.S. 57 (1981).  The 5^th Circuit noted that it was required to follow Supreme Court precedent, that only SCOTUS can overrule its own precedents.  National Coalition for Men v. Selective Service System, August 13, 2020.

So what was SCOTUS thinking in 1981?  The Court noted that President Carter had recommended to Congress that women should be included in draft registration. Congress gave the matter considerable thought and said no.  The rationale was that a draft was viewed as something that would only occur in an emergency requiring combat troops.  In 1981, the law barred women from combat positions. So the Court reasoned that, for purposes of military service, men and women were not “similarly situated.” So it was OK to require the guys to register when the gals did not have to.

Of course things are different now. Women can and do serve in combat.  The sexes are “similarly situated” and so the rationale for the 1981 decision is kaput.   So maybe if SCOTUS takes this up our country can rid itself of this anachronistic relic of the sexism of days past.   I envision RBG writing the opinion for a unanimous Supreme Court.

All of this caused me to dig up my own Selective Service Registration Card, duly authorized shortly after my 18^th birthday.  It says that I stood 5’10” and weighed 130 pounds.  Half of that is still true.

Hope to see you at 10:00 today!!

DAWG BONE: OR MAYBE CONGRESS WILL JUST DITCH THE DRAFT.

Special education is governed by many words.  Words in statutes. Words in regulations. Words in court cases.  But underneath all of that writing is an unwritten rule:   Everyone involved is expected to act reasonably.   When the parent violates that unwritten rule, the court just might overlook some errors made by the school district. Such is the case of Sanchez v. District of Columbia.

The court held that any denial of “meaningful participation” was harmless. This was based on the mother’s failure to cooperate as the school proposed to move the student from one private school to another.  Key Quote:

…DCPS actively worked to involve Sanchez in its decisionmaking process…..Sanchez declined to participate in these efforts, despite DCPS’s concern that [the current private school] was not serving Z.B.’s needs.  In the spring of 2017 DCPS repeatedly tried to meet with Sanchez to discuss a possible transfer. Yet Sanchez offered only an unreasonably small window of availability and rejected many proposed meeting times, including some that fell within her preferred timeframe.

Mom’s case was further undercut by the fact that the father got actively involved and approved of the transfer. The courts are always assessing the comparative reasonableness of the parties. Because of the mother’s unreasonableness, the court overlooked what might otherwise be considered serious procedural errors.

Of course the best practice is to avoid making procedural errors in the first place. But if you do err, the “unwritten rule” might come to your rescue. This one went all the way to the D.C. Circuit Court and was decided on May 14, 2020. We found it at 76 IDELR 175.

DAWG BONE: TO ERR IS FORGIVABLE.  TO BE UNREASONABLE IS NOT.

Tomorrow: Zooming!

Yesterday’s Daily Dawg was a bit longer than usual. Today we go short, with a quick follow up on one of the main points from yesterday.  You will recall that yesterday’s case involved the potential liability of an assistant principal in Missouri who was charged with violating local policy. That policy said that when police officers questioned a student at school “the principal or designee will be present.”  Because that policy left no room for discretion or judgment, the A.P. was not able to claim “official immunity.”

You should check out your school’s policy on this subject.  It’s at GRA (Local).  I looked up four districts at random and they all had the same language: when law enforcement questions a student, other than in a child abuse investigation, “the principal or a designee ordinarily shall be present…”

That’s not quite as directive as the Missouri policy, but it’s close.  “Ordinarily” someone must be present.

There are two very simple rules about local policy.

• • • • • Rule One: Know What It Says.
        • Rule Two: Do What It Says.

DAWG BONE: KNOW IT.  FOLLOW IT. 

Today’s Daily Dawg is going to be longer than usual.  I want you to get the full picture of the facts behind the court case I will tell you about.  The case involves a preliminary ruling by a federal court holding that an SRO, an assistant principal, and the school district all face potential liability due to police questioning of the student at school.  This happened in Missouri, but it could happen in Texas.  Please read on.

Let’s play word association.  What comes to mind when you hear the word “seizure”?  That question separates those who think more like doctors from those who think more like lawyers.  For medical purposes, a seizure is a serious event that happens to a person.  For the lawyers, a seizure invokes the 4^th Amendment to the Constitution. That’s the one that protects us from unreasonable searches and seizures.  We are seeing claims of “unreasonable seizure” by police officers operating in public schools on the rise.

Let’s play word association again.  Consider the word “seizure” in its Constitutional sense.  What comes to mind?   A police officer handcuffing a suspect?  Yes—that’s a seizure.  The classic Good Cop/Bad Cop questioning in the small, windowless room while a single naked light bulb swings ominously overhead?  That’s a seizure.  But how about this: two police officers quietly questioning a 16-year old, straight-A student for 10-20 minutes in an office at the school with the door shut and no one else present.  No force was used.  No one touched the student.  No one told her she could not leave.  Is that a “seizure”?

The court noted that a “seizure” occurs when government actors have “by means of physical force or show of authority…in some way restrained the liberty of a citizen.”  Given all of the circumstances, would a reasonable person have felt free to just walk away?  If not, you have a “seizure.”  In this case the SRO pulled the student out of class and told her to report to an office for questioning by two police officers.  The court put it this way:

L.G. has alleged that she did not feel free to leave, and it is reasonable to infer that a minor student who was directed not to attend class so that she could be questioned by police officers, and who was then left alone with those two officers, would not have felt free to ignore [the SRO’s] directions.

So it was a “seizure.”  Next issue: Was this seizure “reasonable”?  The court noted that seizures are considered “reasonable” if they are supported by a warrant, or “exigent circumstances.”  There was no warrant here.  Nor did the circumstances appear to require the immediate questioning of this student during the school day.  The cops were not looking into an imminent bomb threat or some immediate threat.  If they had, perhaps the court would have deemed this to be a case of “exigent circumstances.” Instead, they were questioning this student about allegations that another student was sexually assaulted outside of school. The police questioned L.G. as a potential witness, not as a suspect.  She was being questioned because she had the same first name as the victim.

Thus the court concluded that this was a “seizure” in the absence of a warrant or the type of circumstances that would justify the seizure.  The student had plausibly alleged a violation of her 4^th Amendment rights.  The case would not be dismissed.  The parties would proceed to develop evidence and prepare for trial.

Things got decidedly worse for the SRO and an assistant principal when the court turned to the issue of their personal liability.   The student did not just sue the two officers who questioned her—she sued the SRO who told her to report for questioning, and the A.P. who did not intervene. As the SRO escorted the student to the room for questioning, the A.P. asked the SRO if he was needed, and the SRO said no. So the 16-year old girl went into the room for questioning alone.  Note: the court held that it was the SRO who “seized” the student even though the SRO did not participate in the questioning and was not in the room when it happened.  Key Quote:

L.G. has alleged that [the SRO] was the one who directed her out of her class room and told L.G. that two CPD officers had come to the school to question her, and who led L.G. into the room with the other two officers and left her there after closing the door.  In short, the complaint alleges that [the SRO] seized L.G.  The fact that [the SRO] did not herself question L.G. does not mean that she cannot be sued for unconstitutional seizure.  (Emphasis added).

So it’s not the questioning that is the “seizure.” It’s the directing, telling, leading and leaving her there alone with the door shut.  It’s the SRO who faces personal liability for an unconstitutional seizure.

What about the A.P.? The claim against him is one of negligence and is governed by state law.  The A.P. sought dismissal of the claim against him on the basis of “official immunity,” which protects government officials in Missouri from liability when they are using their discretion.  Texas applies a similar standard.

The court refused to dismiss the claim against the A.P. because he is charged with flat out violating a local policy. That policy says that when the police question a student at school “the school principal or designee will be present.”  Recall that the A.P. asked the SRO if he was needed, was told that he was not, so he went about his business.  Perhaps he forgot the school policy that left no room for discretion: “the school principal or designee WILL BE PRESENT.”  No room for a  judgment call there.

What about the school district?  That case remains alive as well, although the plaintiff bears a heavy burden to show that the district has a widespread custom or practice of ignoring its own policy and permitting seizures of students without a warrant, exigent circumstances or the presence of a school official.

This is a good case to think about on Toolbox Tuesday.  The Toolbox is our firm’s one-day training program dealing with discipline of students with disabilities.  Tool #10 is “calling the cops” or otherwise involving law enforcement.  Schools can use Tool #10, but as this case reminds us, the tool needs to be used properly.

The case is L.G. v. Columbia Public Schools, decided by the U.S. District Court for the Western District of Missouri on May 12, 2020. We found it at 76 IDELR 179.

We’re going to talk about this in detail at our Zooming with the  Dawg this Friday.  I’ll be joined by Blake Henshaw from our Houston office. Hope to see you there!

DAWG BONE: TAKE A LOOK AT YOUR SCHOOL’S POLICY ABOUT POLICE QUESTIONING STUDENTS DURING THE SCHOOL DAY.

Tomorrow: Let’s talk more about local policy.

Quick: how many days does it take to get from May 9 to November 10?  Answer: 185

How many days does a person have to file a complaint of discrimination with the EEOC or Texas Workforce Commission?  180. 

Do the courts offer any lenience on this deadline? Apparently not.  Former school police officer Castillo missed her deadline by five days. Based on that, the court held that it did not have jurisdiction to even consider her complaint of sex discrimination.  Officer Castillo had complaints over other alleged acts of discrimination or retaliation, and those were filed in timely fashion. But the complaint over sex discrimination was untimely. Tossed out. 

The case is Donna ISD v. Castillo, decided by the Texas Court of Appeals for the 13^th District on August 13, 2020.

DAWG BONE: COUNT YOUR DAYS!

Tomorrow: Toolbox Tuesday!!