It’s hard for me to believe that the Great Mooning Case handled by my former partner, Joe Hairston, happened 23 years ago.  It was one of those cases that makes school law so enjoyable. And so funny. 

It started at a basketball game in Wimberley ISD when one student offered another student $100 if he would go down to the court during the halftime break and moon the audience.  I think the boys were 9^th graders. So consider: what 9^th grader would turn down such an offer? The other question that arises is “what is a 9^th grader doing with $100 to spend like this?”

Here’s another question: would you agree to do this for $100?  I expect not.  So then--how much would it take?  And don’t tell me that there is no number high enough.  There is a number.

School administrators, as is typical, took a dim view of this prank and imposed disciplinary sanctions which were immediately challenged in a state court suit.  That’s how Joe got involved.  The state court judge was sympathetic to the mooner and the moon-inducer, and ordered the school to put them back in school.  Joe knew how to handle that: he removed the case from state court to federal court where he had the good fortune of being assigned to The Honorable Judge Sam Sparks. 

Judge Sparks was already known as one of those judges who did not suffer fools gladly.  Moreover, he had experience as a school attorney before being assigned to the bench.  He had little patience for this suit and issued a memorable written order that, as they say, “ripped a new one” for the state court judge, the lawyers who filed the case, and the parents who supported it.  He concluded with this admonition to the students:

The court has this advice: It’s time to take your punishment like men, no “butts” about it. 

That’s the Great Mooning Case of 1997: Nicholson v. Wimberley ISD.

DAWG BONE: EDUCATORS ARE UNDERPAID AND OVERWORKED….BUT THE STORIES!!

That’s it for the first week of this new year. We’ll be barking again on Monday.

Maybe it’s too early to think about your personal income tax return. After all, April 15 is more than three months away. But it’s not too early to think about a possible audit of your school district! This is happening more frequently than you might think. Both IRS and TRS conduct audits of school districts with regard to those people that you have classified as “independent contractors.”  Are they really? Or should they have been treated as employees?  Getting this wrong can have devastating financial consequences for your school district.  On January 22^nd our firm will be producing an informative audioconference on this subject.  This is an excellent and very affordable way to get some training on this issue.  Our audioconference will be led by Shellie Hoffman Crow and Morgan Beam.  Sign up at www.walshgallegos.com/events. 

DAWG BONE:  INDEPENDENT CONTRACTOR OR EMPLOYEE?  IT MATTERS.

Tomorrow: the Great Mooning  Case of 1997

It sometimes happens that a teacher behaves badly very late in the school year.  Sometimes this happens after the district has already renewed the teacher’s contract for the next year.  Sometimes the district has not formally renewed the contract for next year, but the deadline for notice of proposed nonrenewal has passed, and no such notice has been given. This automatically renews the teacher’s contract. So the district is effectively obligated to the teacher for another year, but then the teacher engages in misbehavior serious enough to warrant termination. What happens then? 

Something close to this happened in Round Rock ISD last year.  We told you about one part of this case on Monday. Today, the rest of the story. 

On April 26, 2019, the district offered the teacher a contract for the next school year—the 2019-20 school year.  Just five days later the teacher slapped a kindergarten student.  Yikes!  The teacher immediately reported the incident and was removed from the classroom. The district began its investigation. As of May 9^th, that investigation was still in the works. That’s the day the teacher signed and returned the contract for 2019-20. 

This puts the district in an interesting dilemma.  It was too late to give notice of proposed nonrenewal. The district would have to a) seek termination; b) honor the contract for the 2019-20 school year and seek nonrenewal of it for the next year; or c) just put the teacher back to work with some other form of corrective action over the slap. 

The district opted for Option B.  It gave notice of proposed nonrenewal on July 8^th and held a nonrenewal hearing on August 5^th. Keep in mind this is about nonrenewal for the 2020-21 school year, so the district is conducting the hearing almost a year in advance. 

The teacher argued that the district had waived its right to act on the basis of an incident that occurred in the 2018-19 school year.  After all, the district renewed that contract, and the Commissioner has ruled previously that if a district renews a contract after it is fully aware of misconduct by the teacher, it cannot later rely on that misconduct to take adverse action. 

The Commissioner rejected the waiver argument.  Key Quotes:

When a school district with full knowledge of a teacher’s actions offers the teacher a new contract, the district has waived any right to take action against the teacher’s contract for the events in the prior school years.  If a school district does not have full knowledge of the teacher’s actions or has begun to take action against the teacher, the district has not waived its right to take action against the teacher’s contract.

Respondent took prompt action as soon as the administration was aware of Petitioner’s misconduct by removing her from the classroom and placing her on leave while the investigation was completed. Even though Respondent moved slowly, it was in the process of acting and did nothing to suggest waiver of its right to take action against Petitioner’s contract. (Emphasis added).

So the nonrenewal was affirmed. The case is Kenyon v. Round Rock ISD, decided by the Commissioner on December 1, 2019.

DAWG BONE:  END OF YEAR MISCONDUCT REQUIRES CAREFUL CONSIDERATION.

Tomorrow: being prepared for an IRS or TRS audit.

One week from today our firm will be providing an audioconference about the Manifestation Determination Review process (MDR).  This is an excellent opportunity to provide effective training to your staff without the time or expense of travel.  Kelly Janes and Hank Bostwick both bring experience to this task, and will offer practical insights into how ARD Committees should address the issue: is the student’s behavior a manifestation of disability? What do we do if the answer is yes? What do we do if the answer is no?  What do we do if there is a disagreement about it?   Join Kelly and Hank for a lively and informative audioconference at 10:00 next Tuesday, January 14.  Sign up at www.walshgallegos.com/events. 

DAWG BONE: MDR AUDIOCONFERENCE WILL BE VALUABLE!

Tomorrow: We renewed the contract….and then THIS happened!

Welcome back, Readers!!  We hope you are well rested and eager to set the world on fire.  No?  Well….then we hope that you are determined to stick it out to the end of the school year. 

And that raises an interesting point—when precisely does “the last day of instruction” occur?  This is important because schools are required to give a teacher notice of a proposed nonrenewal of contract at least 10 days prior to “the last day of instruction.”  That phrase is deceptively simple.  Consider: many districts have final exam days at the end of the year.  There is no “instruction” taking place, but the teachers and kids are all present and accounted for.  Is the “last day of instruction” the last day the students are present?  Or is it the last day of actual teaching, before final exams?

This came up in a recent Commissioner’s decision.  In Round Rock ISD last school year the students were still in attendance until May 23^rd. But at the high schools, May 13^th was the last day of actual instruction. From May 13^th to the 23^rd only exams would be happening.  So where do we begin the 10-day count? 

The Commissioner gives us a definitive answer:

Accordingly, final exam and testing days are included in days of instruction, and in general, the last day of instruction is the last day the students are in the classroom.

So to calculate the deadline for giving notice to a teacher, check your school’s calendar. When is the last day the kids will be there?  Count backwards ten days from there. Get notice to the teacher before that date.

This comes from Kenyon v. Round Rock ISD, decided by Commissioner Morath on October 1, 2019. 

DAWG BONE:  NOTICE OF PROPOSED NONRENEWAL IS DUE NO LATER THAN THE 10^TH DAY BEFORE THE LAST DAY THE STUDENTS ARE PRESENT.

Tomorrow: Toolbox Tuesday!!

DAWG BONE: MERRY CHRISTMAS FROM THE DAWG!

The Daily Dawg returns on January 6, 2020. Until then, enjoy your time off!!

The Department of Education has ordered TEA to pay a bit over $200,000 to Laurel Kash, who served as the state director of special education for about three months in 2017.   The 59-page decision is a rare peak into an obscure whistleblower law. 

There are multiple “whistleblower” laws, each one with its own standards, procedures and burdens of proof.  This case involved Section 41 U.S.C. 4712, which protects people who work for grantees of the federal government. That would include TEA employees. Ms. Kash alleged that she blew the whistle about what she perceived as an improper award of a contract to a third party vendor.  As usual in a whistleblower case, the propriety of the awarding of that contract was not the issue.  If Ms. Kash had a good faith belief that something was amiss, she would be protected when she blew the whistle. 

Ms. Kash alleged three acts of retaliation during her brief stint at the Agency. There was a verbal reprimand, a written reprimand, and then a firing.  The DOE concluded that TEA did not know that Ms. Kash had reported alleged wrongdoing when it issued the reprimands.  Thus her complaints over the reprimands were tossed out.  However, there was evidence to show that key Agency personnel, including the Commissioner, knew that she had “blown the whistle” prior to the decision to terminate Ms. Kash.

At this point the particulars of this whistleblower statute come into sharp focus.  The law mandates a shifting burden of proof—first a burden on the whistleblower, and then a burden on the employer.  But the whistleblower’s burden is not as high as the employer’s.   

The whistleblower has to show that her disclosure of information to the proper authorities (blowing the whistle) was “a contributing factor” in the adverse action she suffered.  Notice: the whistleblower does not need to show that it was the only factor, or even the main factor—but merely that it played a part in the decision.  In this case, the DOE hearing examiner concluded that Ms. Kash satisfied that burden.  TEA’s decision to terminate her was, at least in part, motivated by her report of alleged wrongdoing.

If the whistleblower satisfies that standard, the burden of proof shifts to the employer to show that it made the decision for reasons other than the whistleblowing.  But the burden on the employer is to provide “clear and convincing” evidence of this.  The DOE hearing examiner concluded that TEA failed to clear that high hurdle.  Key Quote:

TEA has not shown by clear and convincing evidence that the decision to fire Kash was not made by someone with a significant motive to silence Kash.

The case identifies numerous concerns over Ms. Kash’s performance.   She was accused of insinuating to outsiders that Agency personnel were violating the law.  That written reprimand targeted “inadequate job performance and conduct that negatively impacts TEA.”  She refused to participate in the Agency’s investigation of her complaints, citing legal advice.  And there was this:

Finally, Morath recalled a meeting he had with the directors of the 20 regional service centers where Kash gave a presentation that Morath characterized as “terrible” and caused the Deputy Commissioner to order that Kash was not permitted to come before the cabinet again.

That’s your state director of special education, being barred from speaking to our ESC directors.  Hmmm. Those sound like serious performance concerns.  Nevertheless, the hearing examiner was convinced that 1) she blew the whistle on what she believed to be illegal activity; 2) high level TEA personnel knew she had done that; 3) her whistle blowing activity was a “contributing factor” in her termination; and 4) TEA failed to provide “clear and convincing” evidence that it would have fired her anyway.

This is not over.  TEA raised numerous procedural arguments, ranging from sovereign immunity to lack of due process.  This one may be appealed.  In the meantime, let it serve as a cautionary tale illuminating the robust protections enjoyed by whistleblowers, even when there are serious and legitimate concerns over job performance.

The case is Kash v. T.E.A. decided by the U.S. Department of Education Office of Hearings and Appeals on November 22, 2019.

DAWG BONE: WHO SAYS STATE EMPLOYEES NEVER GET FIRED!

Tomorrow:  Last Daily Dawg for 2019!

Commissioner Morath decided the case of Clark v. Fort Worth ISD without making any ruling on the constitutional issue the facts presented. This is the well-publicized case in which a teacher sent tweets to President Trump, unaware of the fact that tweets are widely available on the Internet. What she thought was a private communication to the President was there for the whole world to see.   The tweets included things like this:

FWISD is loaded with illegal students from Mexico.

Anything you can do to remove the illegals from Fort Worth would be greatly appreciated.

Apparently, the teacher was unaware of a lot of things. She did not understand how Twitter works, and she was unaware of the Supreme Court’s decision of Plyler v. Doe (1982).  If she had been aware of it, she would have known that students who lack American citizenship are not “illegals.”   They are entitled to Equal Protection of our laws and constitution, which includes the right to attend the free public schools.  So sayeth the Supreme Court. 

You can understand why school officials in Fort Worth would be concerned that the teacher’s viral tweets would generate fear among immigrant families, and, in fact, even among American citizens of Hispanic origin.  That concern led the district to terminate the teacher’s employment.  On November 25^th the Commissioner overturned that decision for reasons we explained in the Daily Dawg on December 9^th. 

The Commissioner did not make a ruling, one way or the other, on the constitutional issue.  But he did make some comments that imply that a teacher who violated the ruling in Plyler could be terminated.  The Commissioner noted that the district did not conclude that Ms. Clark violated Plyler but he also told us what kind of behavior would do that:

To violate the holding in Plyler, Petitioner would either need to refuse to educate a child based on the child’s immigration status or inquire into a child’s immigration status. 

I take that to mean that the Commissioner views the act of asking a question (e.g., “is this child an American citizen?”) as a violation of a clearly established constitutional ruling.  I think the Commissioner implies, but does not specifically determine, that such a violation would justify teacher termination. 

It would certainly justify a very strong reprimand and reminder. 

DAWG BONE: ALL GOD’S CHILDREN ARE WELCOME IN OUR PUBLIC SCHOOLS. ALL. 

Tomorrow: How to get fired by TEA and win $200,000.

I did a Toolbox presentation a couple of weeks ago and made an observation that I had never made before. I found the reaction interesting.  We were talking about Tool #7--the FAPE-Free Zone.  The FFZ refers to those 10 days during the school year when a principal has unilateral authority to remove a student from the classroom the IEP calls for.  We all know that a day of “out of school suspension” has to be counted as one of the 10. But what about “in-school suspension” (ISS)?

The federal law on this is silent and the commentary to the regulations is murky at best.  This led me to say something out loud that I don’t think I’ve ever said before.  I said “special ed directors usually want you to count the days spent in ISS. Campus administrators don’t want to count it.” 

Heads nodded all over the room.  It was like I had just said something that everyone knew, but no one had ever said out loud.

There are pros and cons to counting the ISS days.  If you include them in your 10-day count, you will get to 10 quicker, but you won’t have to worry about some TEA investigator, hearing officer or judge later reprimanding you for changing a child’s placement without going through proper procedure.  If you decide not to count the ISS days, your principals and A.P.s will have a bit more flexibility in dealing with a disruptive student. But you may be vulnerable to an adverse legal ruling in the future.

The most important thing about this is for district officials to be honest, open and consistent with each other.  Are you going to count the days or not?  Decide.  Don’t let there be an unspoken, unacknowledged disconnect between the special ed department and the campus.

This is just one of the fun things we talk about in the Toolbox Training—a full day designed to give your staff a greater sense of confidence in navigating the complex waters of IDEA and student discipline. 

DAWG BONE: COUNTING TO TEN: NOT AS SIMPLE AS YOU THINK.

Tomorrow: The teacher who tweeted President Trump.

Perhaps you are wondering: “what January 6^th deadline?”  So let me tell you. That’s the deadline to register with the Drug and Alcohol Clearinghouse.  Does your district employ drivers who hold a CDL—Commercial Drivers’ License? Of course it does. That means that your district is required to register for this Clearinghouse by January 6, 2020.  Check it out at https://clearinghouse.fmcsa.dot.gov/ 

The purpose of the Clearinghouse is to provide a secure online database regarding drug and alcohol program violations.  You can get more information about this on the website of the Texas Association for Pupil Transportation: www.tapt.com. 

If you have questions about this, let us know at Walsh Gallegos. 

DAWG BONE: ADD THIS TO YOUR “MUST DO BEFORE CHRISTMAS” LIST.

Tomorrow: Toolbox Tuesday!