We’re Zooming with the Dawg today at 10:00. It’s a freebie, limited to Daily Dawg subscribers. Come join us for a 30-45 minute discussion of recent legal issues and Life in General! If you participated in the first Zooming event, you are automatically registered for this one.  If you have not Zoomed with us, but want to, send me an email at jwalsh@wabsa.com. 

One of the more famous episodes of Seinfeld introduced the celebration of Festivus (for the Rest of Us), which included as part of its liturgy The Airing of Grievances.  Mrs. Dawg and I recently decided to adopt this practice in an effort to maintain sanity and mutual respect during a time of forced confinement to the home.  We’ve been together a long time, Mrs. Dawg and I, but this business of being isolated and yet together ALL THE DAMN TIME can wear on one. 

So we decided to air our grievances like the civilized people we are. We gave ourselves three categories: Grievances about IT; Grievances about THEM; and, most importantly, Grievances about YOU.  The grievant was limited to no more than three items in each category.  Furthermore, the idea was not to argue about the grievances, or to be defensive, but just to “air and let air.”  There is sanity in that.

It went well.  I think she took in my substantial and well documented observations about behaviors in which some improvement was obviously called for.   And for my part, I listened patiently to her petty complaints, which were mostly lacking in a factual basis. 

I wonder if this would translate into a school building.  What would it be like if the principal called for a faculty meeting periodically for the purpose of Airing Grievances? There would be an understanding that such a meeting did not trigger Policy DGBA.  No formal grievance conference would be held. It would be a griping/listening session and would work both ways. Administrators would be able to give breath to grievances about teachers (hopefully in the collective, rather than singling anyone out), and teachers could complain of the administration.  If everyone maintained a sense of good will and good humor, this might improve morale.

Try it and let me know how it goes!  We’re doing a Zoom with the Dawg today. Maybe we can discuss this idea. 

DAWG BONE: IT WORKED FOR SEINFELD!

We’re Zooming with the Dawg tomorrow, May 8, at 10:00. It’s a freebie, limited to Daily Dawg subscribers. Come join us for a 30-45 minute discussion of recent legal issues and Life in General! If you participated in the first Zooming event, you are automatically registered for this one.  If you have not Zoomed with us, but want to, send me an email at jwalsh@wabsa.com. 

Things went south quickly in the Hempstead Union Free School District in New York. The district hired a reform-minded superintendent in 2017 in light of a history of corruption, mismanagement and poor academic performance.  But by November of that year, the relationship between the board and the superintendent was off the rails. 

The first sign of trouble was when the board fired the Special Investigators that the superintendent had hired to look into the problems in the district.  In response, the superintendent contacted several law enforcement agencies about his concerns.  On December 6, 2017, the superintendent sent an email to the board to let them know he had done this.  Three weeks later the board suspended him. 

When school started up again in January the superintendent took his case to The People with a “Community Letter.”  In it he attempted to rally the troops to his side, warning that “politics, self-interest, patronage, vendetta, threats and cover-ups cannot rule the day.” 

That did not go over well with the board.  On January 9^th they suspended him with pay. 

These facts formed the basis of a decision by the 2^nd Circuit Court of Appeals in favor of the school board. The superintendent claimed that he suffered retaliation for exercising his constitutional right of free speech.  He was reporting what he believed to be illegal and corrupt activities to law enforcement and the community at large. He claimed that he had a moral, legal and professional obligation to do so. 

In fact he did have a professional obligation to do so, and that’s why he lost his case. The 2^nd Circuit held that the superintendent was not speaking “as a citizen” but rather, as an employee, performing his job duties. It was his duty to report corruption and illegal activity. Therefore, he was acting pursuant to his job responsibilities. Speech of an employee as an employee is not protected by the First Amendment. Thus this case is yet another example of the fact that your district’s highest paid employee has the least protection under the First Amendment. 

The case is Waronker v. Hempstead Union Free School District, decided by the 2^nd Circuit on October 17, 2019. It was in the news recently because the U.S. Supreme Court decided not to take up the case. Thus the decision of the 2^nd Circuit stands. 

DAWG BONE: SUPERINTENDENTS HAVE LESS PROTECTION UNDER THE FIRST AMENDMENT THAN OTHER EMPLOYEES.

Tomorrow: an idea borrowed from Seinfeld

We’re Zooming with the Dawg this Friday, May 8, at 10:00. It’s a freebie, limited to Daily Dawg subscribers. Come join us for a 30-45 minute discussion of recent legal issues and Life in General! If you participated in the first Zooming event, you are automatically registered for this one.  If you have not Zoomed with us, but want to, send me an email at jwalsh@wabsa.com. 

“Parents actively participated in every ARD Committee meeting and indicated agreement at the end of each one.”  That was one of the findings made by the federal court to explain its ruling in favor of Copperas Cove ISD in a case where parents alleged a failure to serve a student with dyslexia.  As far as the quality of the services provided, the court enumerated the four-part FAPE test that we use in the 5^th Circuit.

Was the IEP individualized?  Yes, the court noted specific correlation between the PLAAFPs (Present Levels of Academic Achievement and Functional Performance) and the IEP goals. 

Were the services provided in the LRE?  Yes. This was not an issue.

Were the services provided in a coordinated and collaborative manner?  Yes. This is where the court cited the parents’ participation in and agreement with ARD Committee decisions.

Did the student make progress?  Yes. The district produced evidence of progress in reading, writing and math. 

The parents also complained about the fact that there was an eight-month delay from the time they first requested testing for dyslexia until an IEP addressing dyslexia was put into action.  But the court called this delay “reasonable.”  For one thing, the parents never objected to the pace.  Secondly, the district “was not idly standing by.”  When the parents asked for dyslexia testing, the district offered screening instead, as per standard practice. The parents agreed to this. This was in January.  The screening was done in February, and reviewed by the ARDC in April.  The testing was done in May, and then the summer happened.  The ARDC reconvened in September and put services in place. 

As far as doing screening when testing is requested, the court noted that “deference must be given to the District with respect to the means and method of providing the FAPE.”  Moreover, the classroom teacher had served the student for three months and reported seeing no signs of dyslexia. So the decision to go with screening, instead of testing, was reasonable. 

Notice: the court did not say that screening was the way to go because that’s what the Dyslexia Handbook calls for. It did not say that this decision was right because “we always do it this way.”  The court applied the test of “reasonableness,” in light of the purposes of the law: deferring to decisions of educators, but only if they are designed to provide FAPE, monitor for progress, and respect parental rights.

The case is Amanda P. v. Copperas Cove ISD, decided by the federal court for the Western District of Texas on April 14, 2020.  We found it at 120 LRP 12872. I’m pleased to let you know that our law firm handled this case, with excellent advocacy from Jamie Turner and Kelly Janes in the due process hearing, with Bridget Robinson and Jennifer Childress working on the appeal to federal court.

Tomorrow: Can superintendents blow the whistle?

We’re Zooming with the Dawg this Friday, May 8, at 10:00. It’s a freebie, limited to Daily Dawg subscribers. Come join us for a 30-45 minute discussion of recent legal issues and Life in General! If you participated in the first Zooming event, you are automatically registered for this one.  If you have not Zoomed with us, but want to, send me an email at jwalsh@wabsa.com.

The COVID-19 situation presents us with legal problems we have not had to deal with before.  In the first Zooming with the Dawg event on April 27^th we talked about a few such situations. For example, there you are presenting a math lesson via “distance learning” when some student—or someone else, who knows?--posts a pornographic picture.  What to do?

The starting point is that the Code of Conduct is still in effect.  So consider: how would you have handled this if it happened during regular classes at the school?  To disrupt instruction with the display of porn would certainly violate your Code of Conduct.  Assuming you can accurately identify who did this, you can take disciplinary action. 

Next issue: due process.  How do you provide due process when we cannot have face-to-face meetings?  The basics of due process are notice and an opportunity to be heard, an opportunity for the student to tell the student’s side of the story.  This can be done remotely.  There are judges holding trials via Zoom and other technology. Surely, a remote due process hearing will satisfy the legal standard for student discipline.

Next issue: consequences.  Suppose the normal consequence would be an assignment to DAEP.  But DAEP is closed until further notice.  What then?  Some districts would likely decide to assign the student to DAEP when “regular school” resumes.  Others might view that as ineffective, seeing as how it separates the misconduct and the consequence by months.  If that’s your view, you could use your discretion to deal with the situation in some other way. 

Most importantly, if something like this happens, it should call for an immediate review of your protocols and safeguards in the use of distance learning platforms.  That goes well beyond the Dawg’s pay grade, but we trust that you have IT staff who can help prevent any such misconduct.  

DAWG BONE: NEVER BORING, IS IT?

Tomorrow: Copperas Cove wins another one…

We’re Zooming with the Dawg this Friday, May 8, at 10:00. It’s a freebie, limited to Daily Dawg subscribers. Come join us for a 30-45 minute discussion of recent legal issues and Life in General! If you participated in the first Zooming event, you are automatically registered for this one.  If you have not Zoomed with us, but want to, send me an email at jwalsh@wabsa.com.

The Dawg likes to look out for cases that score high on the Sheesh-O-Meter.  You know, cases that you read and sigh, “Sheesh.”  Sometimes the “sheesh” is directed at a school employee behaving badly. Last week we told you about the California case where a bus driver was accused of a felony level physical attack on a student with a disability.  Sheesh!

But oftentimes the “sheesh” is due to the system that we have that enables overly litigious practices. This is particularly prevalent in special ed disputes with the lengthy, complex and ambiguous federal regulations that attempt to micromanage every aspect of the process.

Today’s example is the case we reported last Wednesday from Ohio.  It was a dispute over whether or not the child needed special education services. The court, relying heavily on testimony from classroom teachers, ruled that the student did not need special services; therefore she was not eligible; therefore the district did not violate the “child find” responsibility; therefore the parents would not be eligible for the $20,000 scholarship voucher that Ohio provides for students with autism; therefore the lawyers who represented the parents would not collect attorneys’ fees from the school.

None of that gets this case on the Sheesh-O-Meter. That’s just a routine special education dispute. Here’s what earns this case a spot on the SOM: the special ed due process hearing was spread out over 22 days over seven months. Then the case went to a state level review and then to federal court where the parents alleged 14 procedural violations by the school. The court found no merit in any of them.

An awful lot of lawyering, briefing, citing, arguing, rebutting, rejoindering, and judging went into this case. Surely we can find a less expensive, faster, simpler method for parents to make complaints and get them decided swiftly. Surely. 

This case is Dougall v. Copley-Fairlawn City School District BOE, 75 IDELR 271 (N.D. Ohio 2020).

DAWG BONE: LET’S TRY TO STAY OFF OF THE SHEESH-O-METER.

Tomorrow: Toolbox Tuesday!!

Well it is.  So find a lawyer and hug said lawyer.  See how I neatly avoided using a gender-based pronoun there?  That’s just one of the nifty tricks we lawyerly wordsmiths use.

It’s also David Thompson’s birthday.  You know…David Thompson, the lawyer. Thompson and Horton David Thompson, not to be confused with Ph.D. Dr. David Thompson at UTSA.  So if you encounter David (virtually of course) wish him a Happy Birthday and tell him I sent him your way.

It’s also my birthday.  And this year marks a Significant Round Number.  Upon the completion of my seventh decade, a few words of gratitude are in order.  I have learned that the regular expression of gratitude is a key to a good life. 

So in no particular order of importance, I offer gratitude for Oreo cookies, mom and dad, big brother and sister, Sister Mary Holywater, all the good priests in my life, my education, Blue Bell,  mentors who steered me toward school law, all of the wonderful educators I’ve gotten to know, Thin Mints, Nathalie Sorrell (wife for almost 47 years), moving to Texas at age 16, special ed directors who taught me to two-step, IBC Root Beer, the first child, the partners in my law firm, the second child, good health, the Astros winning the World Series, the first grandchild, Vince Young scoring that touchdown against USC, the second grandchild, Irish heritage, hearing aids, knees that got me through three marathons before they quit, and my hair. 

Thanks for being part of my journey.  Let’s continue.

DAWG BONE: HOW OLD IS 70 IN DAWG YEARS???

Hearing officers and courts deciding special education cases often apply what I call the “unwritten rule” of special education litigation. They quietly assess the comparative reasonableness of the parties.  That seems to be the reason that the school prevailed in a case from North Carolina.  The court found that the parents—not the teachers--were responsible for the increase in the student’s inappropriate behavior, noting that the parents intentionally withheld the student from attendance until after noon each day so that he would miss his core special education classes. 

The court noted that the record showed that “IEP meetings were lengthy; they also tended to be contentious and emotional, with plaintiff talking very loudly, interrupting others, and arguing over miniscule things for hours.”  This was probably a factor in the court’s ruling against the parent on the retaliation claim.  The court noted that the school had a legitimate reason to issue a no-trespass letter and then to seek its enforcement when the parent violated it.

The case is Coleman v. Wake County BOE, 76 IDELR 5 (E.D.N.C. 2020).

DAWG BONE: “ARGUING OVER MINISCULE THINGS FOR HOURS.” LET’S TRY TO AVOID THAT.

Tomorrow:  Law Day!

I once heard a judge talking about her experience in family law disputes. This judge was in a large county in Texas where there was a court dedicated exclusively to these cases. So this judge had years of experience in divorce cases, custody battles, and all the other ugly stuff following in the wake of a marital breakup.

She said that the witness she listened to the closest was the classroom teacher.  “The teacher,” she explained, “has no ax to grind. The teacher is a neutral observer of the behavior of the child and both of the parents. The teacher’s testimony usually carries a lot of credibility.”

In special education cases, the classroom teacher is usually the most important witness, but it’s for a different reason.  In a custody fight, the teacher is not called on to give an opinion. The teacher just relays the facts.   In a special education due process hearing, the teacher is giving both facts AND expert opinion.  The teacher is the World’s Leading Expert on the particular child’s performance in school.  So if the legal issue is whether or not the student needs to receive special education services, the classroom teachers are critical witnesses.

In a case recently decided in Ohio, strong testimony from multiple teachers convinced the court that the school did not violate its child find responsibilities. The student had good grades in high level classes as a 9^th grader, and teachers also testified that she was socially connected and appropriate in her behavior. The girl had been bullied and a private psychologist evaluated her as being on the autism spectrum.  The court noted that a duty to refer a child for testing arises only when there is a suspicion of disability, along with some indication of an educational need for special help. Here, there was no indication that the bullying or any signs of autism were adversely affecting the child in her school performance.  The case is  Dougall v. Copley-Fairlawn City School District BOE, 75 IDELR 271 (N.D. Ohio 2020).

DAWG BONE: TEACHERS ARE THE MOST IMPORTANT WITNESSES.

Tomorrow:  a good illustration of the “unwritten rule.”

This COVID thing has put the Toolbox on the shelf.  As most of you know, the Toolbox is our firm’s all day training program focusing on the disciplinary options when dealing with students with disabilities who engage in disruptive or violent behavior.  I have done Toolbox trainings all over the state, and would love to continue to do so. But it doesn’t make much sense right now.

For one thing, we can’t gather in numbers. We limit Toolbox sessions to 40 or 50 people, but still, that’s way more than is allowed currently.  Furthermore, the school buildings are closed. This just isn’t the time when an all-day, face to face training is feasible.

But I am available for Zoom conferences or webinars of some sort. If your district or ESC is interested in a session of one to two hours, that would be plenty of time to give an overview of the Toolbox, or a refresher for those of you who have had Toolbox training.  The kids will be back next year, you know, so now would be a good time to put some things in place so that you will be well equipped to handle whatever comes your way in the 2020-21 school year.  The goal of the Toolbox training is to give you a framework and vocabulary to better understand your options.  This improves the self-confidence of school administrators when dealing with challenging situations. 

So let me know if you are interested, and we can get something on the schedule. Send an email to me at jwalsh@wabsa.com. 

DAWG BONE: TOOLBOX STILL AVAILABLE!

Tomorrow: why teachers are so important as witnesses

When I was in law school, I was taught that the Latin expression “respondeat superior” means “let the boss pay.”  That’s pretty much the concept.  It comes up in tort cases—cases involving personal injury other than a breach of contract.  It enables an injured party to recover from the guy who has the money, even though the guy with the money is not the one who directly caused the injury. 

For example, if I slip and fall on a wet spot at the H.E.B., it is hardly the fault of Charles Butt or any of the corporate bigwigs who own and operate the H.E.B. grocery chain. It’s probably the fault of some minimum wage worker who didn’t get over to the produce aisle fast enough to clean up the mess.  But with the doctrine of “respondeat superior” I can successfully sue H.E.B. without having to prove that the company did anything wrong. I just have to prove that I was injured due to the negligence of one of their employees.

Having provided that example, I suddenly feel guilty. I should not be using H.E.B. as the example here. They have been heroic throughout this COVID-19 pandemic.  I am grateful for the dedication of the people stocking the shelves, handing out the wet cloths as you enter, ringing up the sales behind a plastic shield, gently guiding the long line of carts to the open register.  Going to H.E.B. has been the highlight of the week for me these past several weeks.  So I am regretful that H.E.B. is what popped into my head to illustrate the legal concept of “respondeat superior.”

So let’s start over. Suppose I slip and fall at Target—a Minnesota corporation.  I don’t have to sue the poor underpaid, overworked employee who failed to clean up the wet spot. I can sue Target.  Let the boss pay!

Obviously, the lawyers who represent injured parties love “respondeat superior.” It makes their jobs so much easier, and more lucrative.  When those lawyers take on a case involving someone who slipped and fell at a public school district they are often shocked to learn that “respondeat superior” does not apply to governmental entities in Texas.  Instead, the Texas Tort Claims Act applies, and it limits school district tort liability to cases arising from the negligent use or operation of a motor vehicle.

The same is generally true under federal law.  But there is an exception: disability discrimination under ADA and/or Section 504.  Thus in I.V. v. Vacaville USD, a federal court in California cited several Circuit Court decisions for the notion that school districts can be liable for the actions of their employees under ADA/504 based on respondeat superior.  Thus the district faced potential liability for the violent assault of a student with a disability by a bus driver who was later charged with felony child abuse. Of particular interest to us is that one of the Circuits cited was our 5^th Circuit.  We found this case at 76 IDELR 45 (E.D. Cal. 2020).

DAWG BONE: THOSE BUS VIDEOS……

Tomorrow: Toolbox Tuesday!!