Today’s Daily Dawg was prompted by a story I read in the newspaper about a tussle over the release of the educational records of a student who later committed a mass murder.  The former student was killed in the incident.  Can the school release the student’s grades, test scores, special education status? 

According to the Family Policy Compliance Office (FPCO), it depends on how old the student was at the time of death.  FERPA rights transfer from parent to student when the student turns 18 or is otherwise emancipated into adult status by state law.  If the student holds the FERPA rights at the time of death, the FERPA rights die with the student and the school may release the student’s records.  That’s the case as far as FERPA is concerned, but remember, there are other privacy protections to be considered. So call your lawyer on this one. 

If the FERPA rights had not transferred to the student at the time of death, then they still belong to the parents. In that case, any disclosure of personally identifiable information from those records would require parent consent, unless some other FERPA-exception applied.  I got all this from Letter to Parker, issued by FPCO on February 20, 2009.  The letter is at 109 LRP 25215. 

That’s a dreary subject to end the week on.  So I hope you will tune in to Zooming with the Dawg where we promise some more uplifting, albeit still legally accurate information.  Among other things we are going to talk about the role of teacher organizations in Texas.  We zoom at 10.  Be there or be square!

DAWG BONE: FERPA RIGHTS TRANSFER WHEN THE STUDENT IS AN ADULT.

Jane Roe 1 and Jane Roe 2 were students in a private college in Pennsylvania along with John Doe.  The two women accused Doe of violating the college’s Sexual Misconduct Policy.  The college investigated, found the accusations credible, and expelled Doe.  Doe had “completed nearly all the coursework required to earn a degree” when he was kicked out of the school.  He sued the college, alleging 1) sex discrimination in violation of Title IX; and 2) breach of contract by the college. 

The federal district court dismissed Doe’s suit, but now the 3^rd Circuit has reinstated it.  In doing so, the court adds judicial support to the due process scheme outlined in the new Title IX regulations that are scheduled to go into effect on August 14, 2020. 

Those regulations were not at issue here, but the process that the college followed was.  The court was ruling on a Motion to Dismiss, which means that it was required to accept Doe’s allegations as true, and draw any reasonable inferences from those facts in favor of Doe. In other words, the court was required to give Doe the benefit of every doubt. This standard practice in our federal courts is designed to make sure that cases are not dismissed hastily, but only when it is clear that they have no chance of success.

Doe alleged that the college “succumbed to pressure from the federal government” to “institute solutions to sexual violence against women that abrogate the civil rights of men and treat men differently than women.”  He also asserted that the college investigated him but ignored his charges that three women, including both of the Jane Roes, violated the Sexual Misconduct Policy.  The court concluded that Doe may be on to something:

And when Doe’s allegations about selective investigation and enforcement are combined with his allegations related to pressure applied by the 2011 Dear Colleague Letter, we conclude that he states a plausible claim of sex discrimination.

The court also found plausibility in the breach of contract claim.  Such a claim by a student can only be made in a school where tuition is paid in exchange for education.  That can be considered a contract.  In the free public schools, the contract theory does not wash.  Here the court found that the contract promised students a process that would be “adequate, reliable, impartial, prompt, fair and equitable.”  The court held that the process the college used fell short of that standard.  Key Quotes:

…the basic elements of federal procedural fairness in a Title IX sexual-misconduct proceeding include a real, meaningful hearing and, when credibility determinations are at issue, the opportunity for cross-examination of witnesses. 

We hold that [the college’s] contractual promise of “fair” and “equitable” treatment to those accused of sexual misconduct require at least a real, live, and adversarial hearing and the opportunity for the accused student or his or her representative to cross-examine witnesses—including his or her accusers.

That’s exactly the level of due process the new Title IX regs call for at the postsecondary level.  K-12 schools are not required to hold a live hearing, but they are required to offer a process that treats boys and girls equally, regardless of who is the accuser and whom the accused.

The case is Doe v. University of the Sciences, decided by the 3^rd Circuit on May 29, 2020.  We found it at 2020 WL 2786840.

DAWG BONE: GET READY FOR MORE “DUE PROCESS” ON SEX DISCRIMINATION CLAIMS.

Tomorrow: FERPA.

The superintendent of the Burnham Wood Charter School signed a contract with a vendor to construct a building where the charter would operate a school in El Paso.  The contract included a paragraph in which the superintendent warranted that she had the authority to bind the entity for which she signed.  It turns out she did not have that authority.  The entity that did have the authority—the charter’s governing board—never approved the contract.  The charter school repudiated the contract and the vendor sued for breach. 

The Texas Supreme Court dismissed the vendor’s breach of contract suit, holding that the courts did not have jurisdiction of this kerfuffle.  Why no jurisdiction?  Follow this logic closely: 

1. Open enrollment charter schools (OECS) have immunity from lawsuits just as traditional schools do.
2. Vendors can still sue over a breach of contract, but only when the contract has been “properly executed.”
3. Since every word in a statute has meaning, a contract can be “executed” without being “properly executed.”  That was the case here.
4. As a general rule, a contract with an OECS must be executed by its governing board, not the superintendent.  Authority can be delegated to an individual only by charter amendment approved by the Commissioner.  No such amendment existed here. Therefore the contract, though “executed” was not “properly” executed.  Sorry, vendor.

From the court’s opinion it sounds like the vendor knew there was a problem.  The vendor’s attorney wrote to the charter school’s attorney indicating that it was understood that the contract needed to be approved by the governing board.  That never happened.  Despite the fact that the board never approved or executed the contract, the vendor argued that it already had a good contract with the charter.  Nope. 

Do these same rules apply to traditional schools?  Yes.  But the traditional school operates in a more familiar and transparent way.  We know who is on the school board. We elect them. Their names are on the website. We know when they meet.  We can attend and participate when they do.  The governing board of a charter school is often a non-profit board, comprised of people we did not elect, do not know. And who knows when or where their meetings are.

So vendors beware.  You don’t have a deal just because the superintendent says you do.  The case is El Paso Education Initiative, Inc. d/b/a Burnham Wood Charter School v. Amex Properties, L.L.C. decided by the Texas Supreme Court on May 22, 2020. 

DAWG BONE: AHH, THE INTRICACIES OF GOVERNMENTAL IMMUNITY, A LAWYER’S DELIGHT.

Tomorrow: Doe v. Roe.  Must be about sex!

The ol’ Toolbox is getting rusty.  It sits in the garage, unused for too many months.  So today we offer a reminder: we can do the Toolbox in a virtual environment.  It might not be as fun, but it can be effective.  The Toolbox is an all-day training focused on serving students with disabilities properly, even when they present challenging behaviors.  The Toolbox comprises ten “tools” that comply with the law and provide flexibility to school administrators. 

We can easily provide Toolbox trainings via Zoom or some other online platform.  A full day on Zoom might be a bit much but consider these options: a two-hour overview; or the entire Toolbox, including the book and laminated cards, in four two-hour segments. 

If your staff has had Toolbox training, an update can be done.  If you’ve never done the Toolbox and are interested, let me hear from you. 

DAWG BONE:  THE LEGAL ISSUES HAVEN’T GONE AWAY.   

Tomorrow: did the charter school properly execute the contract?

Hoping you can join me for Zooming with the Dawg on Friday.  We start these gatherings with a few suggestions that have nothing to do with the law. We’ve covered books to read, TV shows to watch, podcasts to listen to, fun things to do in the summer.  This week: while we are restricted by Covid, what are you missing the most?  Let’s leave out people—we know you miss your friends and family.  Let’s talk about activities, stuff, conveniences…things like that.     

As for the legal stuff, let’s open this week with a few thoughts about the latest AG Opinion regarding payroll deductions.  The background on this is the SCOTUS decision last year that held that teacher unions could not force non-members to pay a fee to the union.  This is a common practice in states that have genuine teacher unions.  We don’t have genuine teacher unions, but as you have probably heard, other states do.  Texas educators join “associations” which should not be equated with a union.  A union is an organization that has power.  If Texas teacher associations had the same kind of power that unions have Texas teachers would not be signing contracts agreeing to work for the district at a rate of pay that the board will decide on later.  What other professional person does that?  

Some Texas politicians contend that we do have teacher unions and that these evil, radical leftwing, Marxist organizations do nothing but protect bad teachers and block meaningful educational reforms.  Teacher unions make for a good punching bag for politicians who lean to the right. 

The AG’s Opinion (KP-310) simply reminds us of the Supreme Court’s ruling about forced payment of dues to an organization you don’t want to join.  That’s never been the practice in Texas.  Payroll deductions happen only when teachers instruct the district to do so. Teachers give written consent.  The AG suggests that it would be a good idea for districts to get this authorization yearly.  Well, of course you can do that, but the statute does say that an authorization by the teacher is good until it is revoked (T.E.C. 22.001(b). 

We will discuss this AG Opinion and other issues involving Texas teacher associations on “Zooming with the Dawg” on Friday at 10.  Our discussion will be enlivened by two lawyers who have extensive experience with teacher associations.  My law partner, Joey Moore, served as General Counsel for the Texas State Teachers’ Association for many years before joining our firm.  And Jefferson “Jay” Brim has represented members of the Association of Texas Professional Educators from the time that organization was formed. 

Hope you can join us on Friday. 

DAWG BONE: POWER IS THE ABILITY TO GET EXACTLY WHAT YOU WANT WITHOUT FORCE, MANIPULATION OR DECEIT.  UNIONS THAT CAN COLLECTIVELY BARGAIN HAVE POWER.  TEACHERS’ ORGANIZATIONS IN TEXAS DON’T. 

Tomorrow: Toolbox Tuesday!!

We’ve spent a lot of ink (digits?  Pixels?) in the Daily Dawg lately on Title IX.  Today a short reminder.  What are the first two words you should say when someone comes into your office and says “I want to make a report of sexual harassment”?  No….not the first two words you are thinking.  Try these two instead:

“THANK YOU.” 

You should start by saying THANK YOU.  That’s a good start toward showing that the district disapproves of sexual harassment and seeks to eliminate it.  It indicates that you understand that sexual harassment is a cancer that feeds on silence.  So when someone speaks up about it, they are doing the district a service.  So say THANK YOU.

DAWG BONE: YOUR FIRST TWO WORDS: THANK YOU!!

Here is an eye-catching line in a recommendation from a Texas magistrate five years ago:

Critically, whether [the student]  was upset by the conduct of fellow students is not relevant to the Court’s determination of whether the alleged harassment is actionable under Title IX.  “The standard is not subjective; instead, it is whether the harassment was severe, pervasive, and OBJECTIVELY unreasonable.”  Emphasis in the original.

We should point out right away that the student being “upset” IS relevant to teachers, principals and assistant principals who are trying to prevent bullying.  So don’t take this Title IX legal standard and apply it to the day-to-day operations of your school.  If a student is harassed, picked on, bullied, and is “upset” about it, school officials need to take action. Investigate; take corrective action; take steps designed to end the harassment, prevent its recurrence and repair any damage. 

The magistrate’s observation mirrors the new Title IX regulations that incorporate the “severe, pervasive and objectively offensive” standard for liability.  Let’s remember that much of the vulgar and inappropriate things that students do to each other will fall short of the “severe, pervasive and objectively offense” bar. But that’s no reason to ignore it. In fact, ignoring it allows the cancer of sexual harassment to metastasize.

The recommendation of the magistrate judge was made on December 1, 2015 in the case of K.S.  v. Northwest ISD. We found it at 2015 WL 9450853.  The court’s ruling in favor of the school district was ultimately affirmed by the 5^th Circuit in 2017. 

DAWG BONE: WHAT IS “IRRELEVANT” IN COURT MIGHT BE VERY “RELEVANT” IN MIDDLE SCHOOL.

Tomorrow: the first two words you should say in response to a sexual harassment complaint

Police Officer Shawn Olney took a middle school girl to a local hospital over the objections of the girl’s father.  The student had confided in the principal that she had been thinking about suicide.   She mentioned the guns and knives in the family home that made her “want to hurt herself.”  The principal called in Officer Olney. 

Officer Olney called the dad, informed him of the girl’s mental state, and told him that she would take his daughter to the hospital.   The dad told the officer not to do that. He would leave work immediately, come to the school and take the girl home.  That would take about 90 minutes.   Officer Olney chose not to wait for the dad, and took the girl to the hospital over his objection. 

Hospital staff did a mental health assessment of the student, which included a blood draw.  They determined that she did need treatment. Dad eventually arrived, still objecting to the way this was handled.  The court tells us that “after considerable discussion” the staff released the girl to her father, provided that he take her immediately to a nearby mental-health center.  The dad did that. 

The dad sued the officer personally, arguing that this was an unconstitutional seizure in violation of the 4^th Amendment.  The officer claimed qualified immunity and asked the court to toss the case out. The district court refused to do so, but now the 6^th Circuit has reversed that.  Officer Olney was entitled to immunity from personal liability.  Case dismissed.

The case nicely illustrates the protection that government officials have from personal liability under federal law.  The 4^th Amendment allows a seizure of a person for a psychiatric evaluation only if there is “probable cause to believe that the person is dangerous to himself or others.”  The 6^th Circuit held that this standard was satisfied here.  Significantly, the student self-reported her suicidal thoughts.  Couldn’t the officer have honored the dad’s request to wait 90 minutes and then let him take her home?  Maybe. But the court noted that “Olney had reason to fear that [the student] might hurt herself at home, given that [she] herself had just said that ‘she sees things’ there (i.e., guns and knives) that made ‘her want to hurt herself.’”

This one is Machan v. Olney, decided by the 6^th Circuit Court of Appeals on May 14, 2020.   

DAWG BONE: QUALIFIED IMMUNITY PROTECTS SCHOOL OFFICIALS TOO.

Tomorrow: how important is it that the student is “upset” about bullying?

On Tuesdays here at the Daily Dawg we like to give you reminders of some of the principles and practices associated with The Toolbox—our firm’s all-day training program regarding discipline of students with disabilities. Today, the story of a district in Tennessee that sent a student to an alternative campus for 180 days based on possession of marijuana.  We can learn several things from this obscure decision by a special education hearing officer. 

First lesson: it’s usually a mistake for the parents to refuse to consent to an evaluation that the school offers to do.  The parents brought a doctor’s note to the meeting where the MDR (Manifestation Determination Review) would be done. The doc reported that the boy had anxiety.  In response, the school offered to conduct an evaluation to look into that more thoroughly.  Parents refused to consent. The hearing officer held that this removed “anxiety” from the category of conditions that the school should have known about.  When the school offers to evaluate, and the parent refuses to consent, the school is relieved of any “shouldaknown” liability.  Plus, it looks bad for the parents.

Second lesson: possession of marijuana is a “special circumstances” offense, which means that a removal of 45 school days is an option.  But if the school wants to order a longer removal, the MDR has to come out right.  In Toolbox terminology, possession of pot is a Tool #5 situation.  But if the school seeks to exceed the 45 days authorized by Tool #5, it has to use Tool #6—Disciplinary Change of Placement.  This school called for a removal of 180 days.  If the removal had been limited to 45 school days, the outcome of the MDR would not have been relevant.  Fortunately for the school, the hearing officer agreed that the boy’s possession of a controlled substance was not a manifestation of disability, so the removal for the full 180 was permissible.  However, it was not proper, which leads to our third lesson.

Third lesson:  If the behavior is not a manifestation of disability, the student can be removed to an Interim Alternative Educational Setting (IAES), but it has to be one where the student can continue to progress on the IEP goals.  The IAES need not perfectly replicate the way things were done under the IEP, but it has to continue to offer FAPE.  The hearing officer held that the district failed to satisfy this standard.  The IEP goals remained the same but some of the services were reduced and there was no good explanation for how the school would still be able to provide FAPE.

We cover all these issues in the Toolbox Training, which we HOPE to continue to provide in its typical in-person, all day format in the fall.  In the meantime, if you’d like to schedule your staff for an overview or update, just let me know. 

This case is from Knox County, Tennessee and can be found in Special Ed Connection at 120 LRP 15185.

DAWG BONE: EVEN AFTER REMOVAL, PROVIDE FAPE.

Tomorrow: Qualified immunity saves the police officer

I’m reading Dreyer’s English by Benjamin Dreyer.  Mr. Dreyer describes his book as “An Utterly Correct Guide to Clarity and Style.”   Since much of my professional life is now about writing, I thought it would be good to get some tips on the subject.  I’m learning a lot from this book. Right away I learned that I rely way too much on the various forms of the verb “is.”  So now I watch out for that.  For example, the entry for Wednesday of this week originally had a sentence that read: “The case is a good illustration of….”  I write sentences like that all the time, and Mr. Dreyer has convinced me that such sentences should be improved. So on Wednesday, you will not see that sentence.  Instead, you will find: “The case nicely illustrates…”

The Dreyer book got me thinking about things we learned in school that, to our utter amazement, we later found out were useful.  Who knew?!  For me, diagramming sentences comes to mind.  As I recall, much of 7^th grade was devoted to this.  Sister Mary Holywater sometimes required us to do the diagramming on the blackboard, so that the rest of the kids could criticize our misplaced gerund or dangling participle.   Being kind of a nerdy kid, I secretly found diagramming sentences satisfying. It was like building a Lego set, only doing it with words that you had to unscramble and then put back together in a different format. But I thought we were spending a lot of time developing a skill that would have no useful application in the world. Can we move on to sex education, please?

Fast forward to the first year of law school as I attempt to untangle complex and overly long sentences in court cases and statutes.  Suddenly I realized that I was mentally back to that blackboard, discerning the meaning of the sentence by breaking it down to its parts: Look! There’s a subject!  Behold: a predicate!! Alas: methinks we’ve found an object!!!  The rest of it relatively irrelevant adjectives, adverbs and prepositional phrases.  It all diagrams!

What comes to mind for you?  This Friday on Zooming with the Dawg, we will dive into this spellbinding topic.  What did you learn in school that seemed completely irrelevant at the time, but that you now have come to value?  Something in science?  Don’t tell me it was math!  A poem? 

I will see if I can get a couple of friends from my law firm to join us.  We look forward to your input—Friday at 10. Zooming with the Dawg. If you’re not already registered for these gatherings, send a request to info@walshgallegos.com.

DAWG BONE: NO ONE WILL BE REQUIRED TO DIAGRAM A SENTENCE.

Tomorrow: Toolbox Tuesday!!