On Wednesday we told you about the teacher in Trenton ISD who lost her job due to accusations of tampering with STAAR testing.  But there was a second basis for the termination—failure to account for student activity funds. 

When I read this part of the case it brought back memories of my service (one year) as coordinator of the Girl Scout Cookie sales for the troop.  This assignment brought me face to face with my inadequacies as an accountant.  I think I did not steal any money….but I am sure that my record keeping fell into the “needs improvement” category.   It’s altogether possible that a box or two of Thin Mints slipped through the cracks.  I’m grateful that the statute of limitations is long past.  I have some sympathy for teachers who have to also handle activity funds. 

But let this case stand as a warning: failure to handle those funds can get you fired.  The Commissioner laid out it clearly:

Petitioner’s record keeping was very poor.  Petitioner did not keep records of how much money was raised and did not keep all receipts to show how the money was spent.  Petitioner did not properly use the purchase order system to pay bills. Petitioner failed to properly account for student funds.

That alone is a sufficient basis for teacher termination. That’s what happened in Burk v. Trenton ISD, decided by the Commissioner on December 20, 2019.  It’s Docket No. 018-R2-11-2019.   

DAWG BONE: GOOD TEACHERS WHO ARE POOR ACCOUNTANTS WOULD BE WISE TO AVOID RESPONSIBILITY FOR ACTIVITY FUNDS.

See you next week, Readers!

I did not know what a “whisper phone” is until my 11-year old grandson enlightened me.   I learned that it is a device whereby students can hear themselves reading aloud.  It’s an allowable accommodation for STAAR testing, and was allowed for the student in a case recently decided by the Commissioner.

Here’s how Ms. Sisk explained what happened:

My students had their allowable accommodations on their desks. And if I noticed a student that was off task, daydreaming, playing with their shoes, whatever, that I would pick up the whisper phone, for example, and—without saying anything and hand it to the student as a non-verbal reminder to stay on task because the students that I tested in small group they were very—they were easily distracted.

Question, Readers: How big a deal is that?  She did not directly tamper with the test.  She did not say a word.  Her non-verbal “suggestion” was to use an accommodation that the student was allowed to use.  Should a teacher with a continuing contract be fired over this?

The independent hearing examiner did not think so, but the school board did.  And now the Commissioner has affirmed the board’s decision. So long, Ms. Sisk. 

We learn three things from this decision.  First, when the hearing examiner labels parts of the decision as “Findings of Fact” or “Conclusions of Law” that label is not determinative.  Here, the board changed some things that were labeled as “Facts” to “Conclusions of Law.”  The board can do this, particularly when the “Finding of Fact” is about whether or not the district has established “good cause” to terminate a contract.

Second, “the board retains the authority to make the ultimate decision as to whether the facts establish a violation of board policy.”  The main thing the board did here was to take out the word “not” in several parts of the hearing examiner’s recommendation.  Where the recommendation said that the district “has NOT established that good cause exists to terminate” the contract, the board changed it to say that the district “has established….”  This is kosher.  The facts of this case were not disputed. The disagreement was over the significance of the facts, and that’s where the school board has the ultimate authority.

Third, it’s noteworthy that this was a termination of a continuing contract.  Under Chapter 21 of the Texas Education Code there are three types of contract available to teachers: probationary, term, and continuing.  The continuing contract offers the greatest protection.  A teacher under a continuing contract can be terminated only for “good cause” which is defined as “the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in this state.”  T.E.C. 21.156(a). 

The case is Sisk v. Klein ISD, decided by the Commissioner on December 16, 2019. It’s Docket No. 013-R2010-2019. 

DAWG BONE: DO NOT—WE REPEAT, DO NOT—MESS WITH THE STAAR TEST.

Tomorrow: activity funds!

As we inch closer to STAAR testing days, the Dawg has found two decisions by the Commissioner that deal with accusations of improprieties in test administration.  We’ll take up one case today and the other one tomorrow.

A teacher in Trenton ISD was terminated based on evidence that she tampered with STAAR test answers, and failed to account for activity funds she was responsible for.  The case is a good illustration of how the “substantial evidence” rule works when a teacher appeals an adverse decision to the Agency.  Consider this:

While the evidence presented does not conclusively prove that [the teacher] changed the students’ answers, a reasonable finder of fact could determine that [she] made the changes. The Independent Hearing Examiner’s determination that [the teacher] changed the Students’ answers is supported by substantial evidence.

In other words: we’re not sure that you did it, but the hearing examiner thinks you did, and there is evidence in the record to support that conclusion. 

The teacher argued that the investigation of STAAR improprieties was poorly handled, but the Commissioner brushed that off, noting that even if the investigation was less than perfect, the teacher had an ample opportunity to defend herself before the independent hearing examiner.

The second basis for the teacher’s termination was her mishandling of activity funds. We’re going to save discussion of that for Friday.  But do tune in on Friday, because this is a textbook case of what can happen when a teacher is sloppy in bookkeeping. 

This one is Burk v. Trenton ISD, decided by the Commissioner on December 20, 2019. It’s Docket No. 018-R2-11-2019. 

DAWG BONE: DON’T MESS WITH STAAR. 

Tomorrow: do you know what a “whisper phone” is?

We save Tuesdays for reminders about the tools in The Toolbox, our firm’s all day training program regarding special education discipline.  Many of the tools are contingent on the ARDC’s decision regarding a manifestation determination.  If the student’s behavior was not a manifestation of disability, the Code of Conduct consequence can be applied, even if it involves a lengthy stay at the DAEP.  If the behavior was a manifestation of disability, the ARDC needs to take a different approach. 

North East ISD placed a student with autism in the DAEP for 45 days after the ARDC determined that the student’s behavior was not a manifestation of his disability.  The parent challenged that decision in an “expedited” due process hearing, but the hearing officer affirmed the district’s decision. 

When T.E.A. releases a decision in a special education due process hearing it does a lot of redacting.  It’s frustrating to read these decisions, trying to piece together exactly what happened when so many crucial details are redacted.   This decision contains only one reference to the behavior under consideration when it notes that the ARDC conducted an MDR (Manifestation Determination Review) “related to Student’s false alarm.” 

Despite the lack of detail, the decision provides a good road map for ARDC’s in making the MDR.  The hearing officer noted that 1) the district first conducted a disciplinary conference in which it was determined that the student had violated the Code of Conduct and that DAEP placement would be the consequence, subject to action by the ARDC; 2) the ARDC reviewed the student’s IEP and BIP; 3) the ARDC reviewed and considered input from the mother; 4) the ARDC adopted an additional goal and behavior accommodations.

The hearing officer agreed with the conclusions of the ARDC—that the student knew what he was doing, knew that it was wrong, knew that he could get in trouble.  Key Quotes:

This incident occurred without any anger, frustration, impulsion or agitation. 

Student has difficulties due to Student’s AU and SI disabilities. But Student is bright, Student works on grade-level TEKS, Student’s teachers like Student, and Student is able to engage in conversation when Student feels safe.  Student does not manifest harmful behaviors towards Student’s peers and teachers. Student is able to describe some feelings and understand the requirements under the Student Code of Conduct. The evidence does not support a finding that the Student’s behavior resulted from the District’s failure to implement Student’s IEP and/or BIP.

So there you have it.  MDR done correctly.  Note also that the district did not just impose a disciplinary consequence—it also made some changes to the student’s BIP in response to this incident.  That is often a wise thing to do. 

The case is Student v. North East ISD, decided by special education hearing officer Deborah McElvaney on October 8, 2019.  We found it on Special Ed Connection at 119 LRP 25656.  On T.E.A.’s website you will find it at Docket No. 401-SE-0819-A.  

DAWG BONE:  MDRs ARE NOT BASED ON THE LABEL. THEY TURN ON SPECIFIC FACTS.

Tomorrow: Tampering with STAAR. 

We don’t know exactly what the 79 pages of documents say.  But we do know that the former superintendent claims that they contain information which is “confidential by law.”  Therefore, the argument goes, they should not be disclosed to the media or the public.   However, the Attorney General issued an opinion stating that the records are not confidential.  Now the Court of Appeals has agreed with the AG’s assessment. 

This began when a school employee filed a sexual harassment complaint against the superintendent, alleging that the harassment occurred at “an out-of-town conference related to education and the employee’s work with the District.”  Now the fight is over many of the documents pertaining to the complaint and the district’s handling of it.

The Public Information Act (PIA) requires the disclosure of public information when requested, but contains numerous exceptions.  This case involves the very first exception set out in the law:

Information is excepted from the requirements of Section 552.021 if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision.  Texas Government Code 552.101.  

Previous cases have interpreted this exception to apply to information that “contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person” if “the information is not of legitimate concern to the public.”  Note: both conditions have to be met for the information to be kept private.  The information must be “highly objectionable” and also, “not of legitimate concern to the public.”  The fact that disclosure may involve “highly intimate or embarrassing facts” is not enough, by itself, to prevent disclosure.

In its opinion, the 14^th Court of Appeals acknowledges that “Personal information about employees that does not shed light on their official actions would not further the purposes of the statute,” and would, therefore, not be disclosed under the PIA.  Public employees do retain a private sphere of activity.  But if the information involves accusations of wrongdoing on the job, it moves out of the private sphere to the public. That was the ruling here.  Key Quotes:

When the information concerns work conduct or job performance of public employees, it is generally not a matter of private affairs, but of public concern.

Matters of workplace harassment, discrimination, and policy violations in a governmental body are, by their very nature, generally not a “person’s private affairs.”

Each of the documents relate to the workplace harassment allegation and do not contain information about [the superintendent’s] private affairs.     

This is not over.  It may go to the Texas Supreme Court. In the meantime, just keep in mind that your sphere of privacy may be smaller than you thought it was.  The case is Roane v. Paxton, decided by the 14^th Court of Appeals on January 28, 2020. 

DAWG BONE:   EMBARRASSMENT IS NOT ENOUGH TO KEEP DOCUMENTS PRIVATE. 

Tomorrow: Toolbox Tuesday!!

I always wonder how judges are effected by their personal experiences in life.  Those impressive figures sitting high above the courtroom in a robe are, after all, naked underneath, just like the rest of us. They all were children. They experienced middle school for themselves.  Were they bullied?  Did they engage in bullying?  Do they have children or grandchildren that tell them how school is today? 

I was shocked to learn that “Slap Ass Friday” is, apparently, a thing among school aged children.  This was going on in Copperas Cove ISD, and, I suspect other places as well.  I learned about it while reading the court’s decision in favor of the district in a Title IX case. 

The plaintiff attended Cove for two years of middle school and filed suit alleging eight incidents that she characterized as sexual harassment.  The court briefly described each of them.  It was all student-to-student, and included verbal insults as well as some physical contact.  Slap Ass Friday was a part of it, and the court’s treatment of that particular allegation is a good illustration of how inappropriate conduct by adolescents does not always amount to sex discrimination under Title IX:

The uncontroverted evidence indicates that Slap Ass Friday was engaged in by all genders, including by [the plaintiff] herself (at least up until September 2015).  Although

indicated during her deposition that more boys than girls engaged in the slapping ritual, this is not sufficient to transform admittedly juvenile teasing into sexual harassment;

The court took a similar approach to the other incidents, noting that they fell short of the type of “severe, pervasive, and objectively offensive” conduct that violates Title IX.  The court offered several examples from other cases of school-based conduct that does violate Title IX:

*A male student being stripped naked, tied up, and having his underwear removed by students on multiple occasions;

*A male student being called “faggot,” “gay,” “queer,” and “man boobs” more than 200 times during his seventh grade year;

*A male student being accosted by a fellow, half-naked male student while enclosed in a bathroom stall and being pressured into oral or anal sex in said bathroom;

*And a female student being involved in a string of incidents with a fellow male student that culminated in the male student being charged with and pleading guilty to sexual battery.

In contrast, this case involved middle school behavior that reflected the “unfortunately typical reality” of middle school.  In short: it was bad. It wasn’t that bad. 

This judicial distinction is well supported in the case law. The court cited this provision from the seminal Supreme Court case on student-to-student sexual harassment:

Courts…must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults….Indeed, at least early on, students are still learning how to interact appropriately with their peers.  It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to students subjected to it.  Davis v. Monroe County Board of Education (1999).

Based on all of that, the court expressed sympathy for the student (“middle school is an extremely tough time”) but tossed the case out of court.  I’m pleased to let you know that our firm represented the district in this case, with Bridget Robinson, Kelly Janes and Haley Turner leading the way.  The case is B.L. v. Copperas Cove ISD, decided by the federal court for the Western District of Texas on January 13, 2020.

DAWG BONE:  COURTS AREN’T GOING TO STOP “SLAP ASS FRIDAYS.”  PRINCIPALS SHOULD.  AND HAPPY VALENTINE’S DAY!!

The Dawg returns on President’s Day!

Things blew up at the 504 meeting.  The dad believed that his daughter needed a 504 plan, but the mom, the girl and the school all disagreed. So there was no 504 plan.   Communication from the dad after that meeting was voluminous and, in the eyes of school administrators, hostile.  So the school imposed a “Communication Plan” whereby two administrators would meet with the man every other week. Other than that, school staff were told not to respond to the dad’s emails or phone calls.  

The dad claimed that this violated his free speech rights under the First Amendment, but the 9^th Circuit said otherwise.  In doing so, the court gives us good guidance on how to deal with that rare parent who abuses lines of communication. 

*There was a basis for singling this dad out.  The school described his communications as “unproductive” and leaving several educators feeling intimidated and bullied. 

*The way the court looked at it, the school was not telling him he could not communicate with school staff—it was only saying that it would not respond to him:

But the plan only set a limit on the amount of communications to which the District would respond.  The only so-called “sanction” in the plan for unapproved communications was that District employees “would not respond to L.F.’s emails or attempts to communicate.” In short, the Communication Plan regulated the District’s conduct, not L.F.’s.

*The restrictions did not apply in an emergency.

*The parent was allowed to attend school activities, and to access school records. 

*The parent could appeal the decision to restrict his communications.

*The plan in no way restricted the content of the dad’s communications. It was about time, place and manner.

With those limitations in mind, the court held that 1) this plan did not infringe on the parent’s right to free speech; and 2) even if it did infringe on those rights, it was a reasonable “time, place and manner” regulation that the First Amendment permits.

If you find it necessary to rein in unproductive communications from a parent, I would add two additional thoughts. First, run this by your school attorney to make sure that you are doing this at the right time, under the right circumstances, with the right language.  Second, no matter how “right” you are, be prepared for an accusation that you are retaliating against the parent. Which brings us right back to the first point: run this by your school attorney. 

This case is L.F. v. Lake Washington School District #414, decided by the 9^th Circuit on January 17, 2020.  We found it at 2020 WL 253572. 

DAWG BONE: DID WE MENTION RUNNING IT BY YOUR SCHOOL ATTORNEY?

Tomorrow: V-Day in the Middle School.  Oh boy.

The Dawg is indebted to Stacy Castillo from our firm’s San Antonio office who recently came across a copy of the “Non-Subversive Oath” signed by a teacher in the Dallas ISD.  Not recently!  Neither Dallas nor any other district is requiring such things today, but the Oath is a reminder of how things were during the Red Scare days of the McCarthy Era. 

This Oath is in the form of an affidavit, authorized by HB 21 of the 1953 legislative session. The signer of this Oath is swearing that he or she “is not, and has never been a member of the Communist Party.”  Moreover, affiants must swear that they have not been a member of any organization which the Attorney General “has designated as totalitarian, fascist, communist or subversive.”

Ye Gods!  Surely this Oath was struck down by a court at some point.  Anyone out there know about that? If so, let me hear from you!

And pass this along to the Social Studies teachers! Good history here.

DAWG BONE: THANKS, STACY!

Tomorrow: can you restrict parent communication with the school?

A Texas hearing officer has concluded that Frisco ISD served a student appropriately, even when the district proposed moving the student to a more restrictive environment. The case is a good illustration of how Tool #3 works in practice.

Tool #3 is a part of our firm’s all day Toolbox Training on how to work effectively with students with disabilities who have challenging behaviors.  Tool #3 (there are ten) is an Educational Change of Placement Without Parent Consent. 

We call it an “educational” change of placement to distinguish this situation from a disciplinary change of placement. When students engage in disruptive behavior that is not a manifestation of disability, a disciplinary change of placement may be called for. That’s Tool #6.  But when the behavior is a manifestation of disability, it’s not proper to use disciplinary tactics.  Instead, the law requires the application of the “two don’ts.”  Don’t punish the behavior; but don’t ignore it either. 

If parents are in agreement with the school’s proposed change of placement everything goes smoothly.  But since the proposed change is often to a more, rather than less, restrictive setting, parental opposition is common.  That’s what happened here.   The school proposed moving this student to a self-contained unit where behavior and emotional control would be the primary focus.  The student had been in the general education setting, so this was definitely a move to a more restrictive setting.   The parents objected and, in fact, pulled the student out of public school and sought reimbursement for the private school tuition they were paying. 

They didn’t get it. The hearing officer held that the district had offered FAPE and that the proposed move to the self-contained unit was timely:

While this setting is more restrictive than the general educational setting, it was necessary for Student due to Student’s behaviors.  It is not appropriate to educate a student in the general education setting when the student engages in disruptive behavior that significantly impairs the education of other students in the general education setting.

 And note this: the move was not intended to be permanent. The district’s goal was to get this student back to his general education setting:

The School District’s goal…was to help Student learn how to handle Student’s emotions when Student was frustrated and teach coping skills in a more controlled environment with the goal of returning to the general education setting.

The hearing officer held that Frisco passed all four parts of the FAPE test that Texas courtuse. 

*First, the IEP was individualized, based on multiple assessments and input from both teachers and parents.

*Second, it was implemented in the least restrictive environment.  Even the move to the self-contained unit satisfied this test because it was the LRE for this student at this time. 

*Third, there was ample evidence of good communication and collaboration between school and parents.  *The only close call was on the fourth factor—did the student make progress?  Academically he did.  He made A’s in all classes and was achieving above grade level.  But by all accounts the

student’s behavior deteriorated toward the end of his time in the district. In response, the school called for revisions to the BIP and a move to the self-contained unit.  The parents argued that this was, in effect, an admission of a denial of a FAPE.  Nope: 

A school district is allowed to change a Student’s program without it being a denial of FAPE.  Otherwise, the result would be any suggested change in a Student’s program would be an automatic admission of denying FAPE to a student.

Kudos to the staff at Frisco ISD for serving this student appropriately.  And hats off to my partner, Nona Matthews, from our firm’s Irving office, who handled this case. The case is Frisco ISD, decided by the special education hearing officer Kasey White on August 23, 2019. It’s posted on Special Ed Connection at 119 LRP 42539, and also at the T.E.A. website as Docket No. 180-SE-0219.

DAWG BONE: USE TOOL #3 RARELY, CAREFULLY, AFTER LEGAL REVIEW.

Tomorrow: Have you heard of the McCarthy Era?

You may want to keep tender eyeballs away from what follows.  Today we tell the tale of a high school football coach who used crude, vulgar and offensive language to motivate his players.   This produced a Title IX suit against the coach, the A.D., the superintendent and the school board. The 6^th Circuit Court of Appeals summed up the case succinctly:

Plaintiffs’ Title IX theory is somewhat unusual.  It hinges entirely on Frye’s use of the term “pussy.”  [Frye is the coach].                            

That theory may be unusual, but the coach’s vocabulary is not. 

Let’s back up for a moment.  The story begins after the 2013 football season.  For the second straight year, the St. Mary’s football team was 0-10. Those 20 games were not close.  St. Mary’s was outscored by a 3 to 1 margin.  By the way, St. Mary’s is not a Catholic school. That’s the name of the town in northern Ohio where all this transpired. It’s a public school. 

Desperate times call for desperate measures, and there are few things more desperate than two straight seasons of humiliation on the gridiron.  So St. Mary’s took a chance on a coach with a long and checkered history. 

It went all the way back to 1995 when Coach Frye was reprimanded for his “unacceptable obscene language” and for “becoming physical with one of the players.”  Did I mention this is in Ohio?  I’m willing to bet this guy has a poster of Woody Hayes in his office.

In 1998 some members of the coaching staff broke the code of silence to complain about Coach Frye.  The complaints focused on how he subjected players to degrading language and pushed them to play through injuries.  

In 2012 some students filed a criminal complaint against Coach Frye.  There was also a complaint filed with the Ohio Department of Education which culminated in a consent agreement.  The agreement allowed for Frye to keep his license to teach and coach, but required his employer to submit quarterly reports on his behavior.   After the 2013 season in that district, Coach Frye voluntarily resigned.

That’s when St. Mary’s came calling, fully aware of his history. In fact, he had coached previously in St. Mary’s. They knew what they were getting in Coach Frye.  They knew about the complaints but they also knew that he was a winner.  Moreover, administrators in the schools where he coached recommended him. He had been Coach of the Year for Ohio District III in 2001.

The lawsuit was filed by two players who alleged that they were harassed by Coach Frye to the point that it amounted to sex discrimination and the intentional infliction of emotional distress. 

As the court noted, this is an unusual Title IX case.  There are no allegations of physical or sexual misconduct by the coach.  Nor is there any allegation of differential treatment of boys vs girls—there were no girls on the team.  This is entirely about a man allegedly verbally abusing two boys.  And in particular it’s about the “P-word.” 

The 6^th Circuit held that the facts alleged did not amount to discrimination based on sex.  Case dismissed.  In the process, the court made some interesting observations:

While beneath the dignity of a teacher and youth mentor, Frye’s use of an offensive, gendered insult to motivate his players does not put this case across the Title IX goal line.

Conduct considered blasé on the gridiron might very well shock the conscience of the chess club or debate team.

That is not to say we condone Frye’s comments.  They are offensive and inappropriate at best. But they are also not unheard of on the gridiron, where the foul-mouthed coach is something of an unfortunate cultural cliché.  All things considered, Frye’s statements were not “utterly intolerable in a civilized community.”

All three of the judges agreed that Coach Frye had not violated Title IX standards. One of the judges would have allowed the case to proceed further to explore liability under Ohio state law.  Another judge wrote a short concurring opinion that includes a nice reminder for educators and school board members about how to deal with verbal abuse aimed at students. We leave you with this:

The way to root out such bad practices, however, is to rely on school boards, administrators, school councils, PTAs, and parents.  It is not to create a federal court action to curb such practices. 

That’s the case of Chisholm v. St. Mary’s City School District Board of Education, decided by the 6^th Circuit Court of Appeals on January 7, 2020.  We found it at 2020 WL 104598. 

DAWG BONE: THE TEAM WENT 9-3 THIS YEAR.  MADE THE PLAYOFFS.

Tomorrow: Toolbox Tuesday!!