The construction crew was making a lot of progress on the new project and wanted to put up a sign to let the community know that the building on the corner of Elm and Travis would be an elementary school.  The foreman texted the superintendent and asked if that would be OK. The exchange went like this:

FOREMAN: We want to put up a sign on the property to make sure everybody knows what this building will be.  OK with you?

SUPERINTENDENT:  Great idea. Go for it!

FOREMAN: I can’t remember the name of the school. ????

Now here is where the problem occurred.  What the superintendent said was “De Zavala.” This referred to Mexican native and Texan patriot Lorenzo De Zavala. It would be the first school in the community named for a Latino, and people were excited about this recognition of the rich Hispanic heritage of the town. 

But...voice to text. 

So the board president was pretty surprised the next morning to drive by the construction site and see the sign: SITE OF: DAYS OF ALLAH ELEMENTARY SCHOOL.

There were a handful of Muslims in the community who were surprised and thrilled. They arranged to have noonday prayer services at the site.  There was a much larger Hispanic community that was miffed, to say the least.  Another gringo double cross.  The ACLU cranked up a lawsuit, citing the school’s favoritism toward a particular religion as a First Amendment issue.

It all got straightened out pretty quick, but serves as a reminder of the risks of voice to text communication.  Be careful out there.

DAWG BONE:  SOMETIMES WE MAKE STORIES UP.  YOU KNEW THAT, RIGHT?

Some folks are comparing our battle against Covid-19 to a war. Our doctors, nurses and other health care workers are on the front lines, but teachers are not far behind them. It’s impressive to see the creativity and hard work of educators all across Texas as we find new ways to serve the students.

Teachers are no strangers to war. They have been fighting the War on Poverty since before LBJ formally declared it in 1964.  They fight it still, even though most of the country surrendered long ago.  It reminds me of Hiroo Onoda, a Japanese soldier who did not get the memo about the Japanese surrender in 1945. Mr. Onoda surrendered in 1974. 

The War on Poverty will probably never be won completely, but teachers score victories every day as they impart to students the knowledge and skills that empower those students to lead productive, fruitful lives.  Now the battle is fought with Google Classroom, Zoom and other tech solutions. But it’s the same battle, one day at a time, one child at a time.

DAWG BONE:  KEEPING ON KEEPING ON.

Tomorrow:  The problem with voice to text.

There was a palpable sense of tension as the ARD meeting began.  Not just tension, but hostility. Then it all came out. The father pointed at the director of special education sitting across the table and said “We’re not going on with this meeting as long as you’ve got that bitch sitting over there.”

For me, this was a “study your shoes” moment.  But the principal was quick witted in his response.  “Sir,” he said, “she may be a bitch. But she’s our bitch.  We want her here.”

The meeting proceeded.  Leadership.

DAWG BONE:  THE SCHOOL CAN STAFF THE ARD MEETING WITH PEOPLE OF ITS OWN CHOOSING.

Tomorrow: still fighting the War on Poverty?

We reserve Tuesdays here at the Daily Dawg for the Toolbox—our firm’s one day training program dealing with the discipline of students with disabilities.  But here we are “sheltering in place” and the kids are not in school.  Let’s take a break!  So instead of Toolbox Tuesday, today I offer the quiz on American History that I created for my 11-year old grandson.  See how you do:

1.  Who is the only U.S. President from the 20th Century who served as a public school teacher?

2.  What U.S. President also served on the Supreme Court? What baseball tradition did he start?

3.  What is the Compromise of 1820?  Who was the primary architect of the compromise?  What famous 20th Century athlete is he related to?

4.  Who was our shortest president?  Tallest?

5.  Who was the first woman to be nominated by a major party as a candidate for President or VP?

6.  When was the first presidential election in which women could vote?

7.  What is “Seward’s Folly”?

8.  Who is the U. S. President who became so disabled that his wife effectively served as president for awhile?

9.  Who was America’s first Catholic President?  Who was the first Catholic to be nominated for president by a major party? What year?

10.  “The Father of Waters flows once again, unveiled to the sea.” Who said it?  What was he talking about?

Enjoy.

DAWG BONE: DOING MY PART TO HELP WITH THE HOMESCHOOLING.

Tomorrow:  A “study your shoes” moment.

I’d be willing to bet that the average person who has a college degree outside of the field of education has a mistaken understanding of what “learning disability” means.  Check this out with your friends who are not teachers.  My hunch is that most of those folks, well-educated though they are, confuse “learning disabled” with “intellectually disabled.”  They think that the term LD refers to the kids with low cognitive ability who are served in the Life Skills room. 

I know I was one of those people.  When I began working with school districts I knew nothing of disability categories or educational jargon.  I had a moment of enlightenment in a phone conversation with a director of special education who sought my advice about a 6th grade student who was not doing well in school.  The director explained that the boy seemed to be a student who needed special help, but he did not qualify under any of the special education categories. 

I asked “Is he learning disabled?”  I knew the term—I just didn’t know what it meant.

“Oh no,” she said.  “He’s not smart enough to be learning disabled.” 

What?!?!  How smart do you have to be, I wondered.  Would I be smart enough? 

Later, after studying the legal definition of SLD (Specific Learning Disability) I figured out what she meant.  To have a learning disability the student must have “adequate” intelligence.  Thus there is a distinction between those with an intellectual or cognitive disability, and those with a learning disability. The LD student has enough intellectual firepower to perform at or above grade level,  but for some other reason is not doing so. Thus there are students who are “not smart enough to be LD.”

But that’s a harsh way to put it and I asked the director if that was how she explained it to parents. “Oh no,” she said.  “I just tell them ‘his bucket isn’t big enough.’”  The director was from Behind the Pine Cone Curtain, and so she added “bless his heart.“

DAWG BONE:  ASK YOUR WELL EDUCATED FRIENDS WHAT A “LEARNING DISABILITY” IS. 

Tomorrow: Toolbox Tuesday!!

When school officials conduct a search of a student’s personal property the search is subject to the requirements of the 4th Amendment.  In the school setting, a search is permissible if it was 1) justified at the inception; and 2) reasonable in scope. 

The search of J.A.M. in Kirby Middle School in San Antonio was certainly “reasonable in scope.” The officer did a “pat down.” No clothing was removed.  Nothing intrusive was done. 

But the lawyer representing the student in the criminal case argued that the search was based on an “uncorroborated anonymous tip” and thus there was no basis for it in the first place.   The officer who conducted the pat down did not know who tipped off the school, and in fact he testified that “I guess they had an anonymous tip.”  But the principal and the school secretary were not acting on the basis of an anonymous tip. A student had tipped them off that J.A.M. might have a gun.  The tip came from a student that the principal considered a reliable source, who had provided good information in the past.  The principal apparently did not inform the officer of all that background, simply asking him to conduct the search. So the officer did not have all of the information that the principal had.  The court concluded that the “collective” knowledge of the school officials satisfied the standard. The search was “justified at the inception.” 

It turned out that the boy did have a gun and it was loaded, wearing it right there on his hip.  As I think you readers all understand, the legality of a search is not justified simply because it produced the item it sought.  The legality of the search will be assessed based on what the school official knew, and what he or she did. Was it justified at inception? Was it reasonable in scope?  Those are the issues—not: did you find it?

Nevertheless, the court’s opinion includes a footnote that hints at the notion that judges can usually find a way to get to the proper result.  The court notes that an “uncorroborated anonymous tip” would ordinarily not be sufficient to justify a search. But then the footnote: 

Where an anonymous tip involves the presence of a weapon on school campus, however, ‘the circumstances presented might not be characterized as ‘ordinary’ and the balance might tilt more strongly in favor of the government interest involved.

The case is In the Matter of J.A.M.  It was decided by the Court of Appeals in San Antonio on March 11, 2020. We found it at 2020 WL 1159045. 

DAWG BONE:  A TIP FROM A RELIABLE, CREDIBLE STUDENT CAN GIVE YOU A REASONABLE JUSTIFICATION TO CONDUCT A SEARCH.

The Court of Appeals has upheld the termination of a middle school principal for sending a text to her husband that included a racy photograph.  This was a nice gesture by the wife.  Using her personal phone, in her private home, she took a nude selfie and sent it to her husband who was toiling away far from home in the oil fields.  This private communication between spouses is entitled to constitutional protection.  But if someone hacks into the wife’s account and distributes the picture around the community all bets are off. 

That’s what happened here.  It’s unfortunate that the principal/wife lost her job due to no fault of her own. In fact, it was the criminal act of a third party (a still unknown third party) that led to the termination of her employment.  The school board concluded that there was no way she could continue to be effective in her job as a middle school principal. 

As far as the legal proceedings, the important thing here was that the facts were undisputed. What was in dispute was the effect they would have.  The independent hearing examiner who heard the case concluded that the board failed to demonstrate “good cause” to terminate the principal.  The hearing officer believed that the principal could still be effective in her job. The board disagreed with that:

Moreover, separate and apart from Esparza’s actions, it is undisputed that a nude photo of Esparza was widely circulated among students and parents at Barrientes Middle School and was widely publicized in the Edinburg community. This exposure clearly diminished Esparza’s ability to perform her role as an administrator and authority figure over the middle school students.

The Court of Appeals acknowledged that “reasonable minds” could disagree about this. But the board’s conclusion on the issue would be upheld as long as there was some support for it in the record. There was: 

It was reasonable for the school board to infer from the escalating media coverage and the fact that the photo had recently “gone viral” that the disruption and distraction from    the photo would continue and interfere with Esparza’s ability to effectively perform her job duties, in violation of ECISD’s policy.

The lesson of this case?  You can lose your job if you lose your effectiveness, even when you did nothing wrong.  I expect some of you disagree with my assessment that she did nothing wrong.  You may think that her use of her cell phone was, at a minimum, reckless.  Maybe so. But think of this from the perspective of the hard working husband, hundreds of miles away, working in the oil fields.  He picks up his cell phone and finds a flirtatious and pleasant surprise from the woman he loves.  I say: there’s nothing wrong with that.

The case is Edinburg CISD v. Esparza, decided by the Court of Appeals for Corpus Christi and Edinburg on March 19, 2020. 

DAWG BONE:  MAYBE A POLAROID WOULD BE A BETTER IDEA.

Tomorrow: Can you do a search based on a student’s tip?

We can expect some students to enroll in kindergarten six years from now with names reflecting the circumstances surrounding their birth.  I expect to hear about a boy named Covid and girls named Corona or Quarantina. 

Hey, it may be a lame joke, but it’s April Fools’ Day and aren’t you tired of hearing about the virus?    Thanks to my partner, Joey Moore, for the inspiration for today’s Dawg.

DAWG BONE:  THAT’S IT FOR TODAY.  WE GOT NUTHIN ELSE.

Tomorrow: the nude selfie case!

Among the many questions coming up in connection with the forced school shutdown due to the Coronavirus are a few questions about student discipline.  Like this one: if a student was “serving time” in DAEP when we were ordered to shut down, must the student complete “the sentence” when school resumes?

The Toolbox, which is an all day training program about the discipline of students with disabilities, offers no direct answer to that question.  We are obviously in unexpected and uncharted territory.   In situations like this, we go back to the basics.  One of the basics of the law is that local districts follow the direction of the state agency.  So if TEA offers guidance on this, you should follow it.  But more likely than not, this will be a local decision to be decided by local administrators interpreting and applying your school policy.  Here’s another basic: your interpretation of your own policy will be respected by the courts, as long as it is “reasonable.”

Here is one more basic rule: you always have the discretion to take into account extraordinary circumstances and make decisions that are in the best educational interests of the students you serve. Will it do any good for the student to “serve the time”?  What is best for the student and the student body as a whole?  Let those “basics” guide your decision making.  

DAWG BONE: IN UNCERTAIN TIMES, GO BACK TO THE BASICS.

Tomorrow:  Six years from now...

When the Arlington ISD conducted a hearing to consider the proposed nonrenewal of a teacher’s contract, it retained attorney Dennis Eichelbaum to assist the board. Mr. Eichelbaum was to “make any rulings that may be required for the efficient presentation of this complaint.”  His rulings were not final, however. The majority of the board could overrule him.  The district also retained another attorney to assist the administration in presenting the case to the board.  The attorneys were from the same law firm.   The teacher’s lawyer objected to this, claiming that it was inherently unfair to the teacher.

The Commissioner did not think so.  Consistent with earlier decisions on this issue, Commissioner Morath held that “the involvement of Attorneys Eichelbaum and Thomas did not cause an unfair hearing for Petitioner.”  This ruling was accompanied by the observation that “It can hardly be said that a school board is the puppet of its hired counsel.”  As a lawyer who has worked with many school boards, I can certainly attest to that.

Obviously the district could have used lawyers from different law firms, which would have eliminated this issue from consideration. But the track record of the Commissioner is consistent on the issue.  Once again, the Commissioner here finds no unfairness in the use of two lawyers from the same firm.  It’s Hernandez v. Arlington ISD, decided by Commissioner Morath on January 27, 2020.  It’s Docket No. 024-R1-12-2019.

DAWG BONE: SCHOOL BOARD MEMBERS ARE NOBODY’S PUPPET!

Tomorrow:  Toolbox Tuesday!!