The Commissioner has affirmed the termination of a DAEP teacher in Seguin ISD for the use of physical force that was unreasonable under the circumstances. The Commissioner’s opinion reminds us of four things that are important in cases like this.

First, Texas law provides considerable protection for teachers using force with students.  The decision states that “the Texas Education Code provides a high level of protection for the teacher” similar to the protections that parents enjoy when using force to discipline their children. 

Second, the district bears the burden of proving that a teacher’s use of force was improper.  The big issue is whether the use of force was reasonable, and the district has the burden of introducing evidence to show that it was not.

Third, the amount of force should be proportionate to the infraction. That was the decisive issue in this case. The teacher and five students were working on a project that involved newspapers and glue.  When the 11-year old student got upset about a comment the teacher made, she started to empty out her glue bottle onto the newspaper. The teacher snatched the paper up, which caused some of the glue to smear on the student’s shirt.  The student grabbed the paper back and pushed it into the teacher’s chest.  The teacher then “snatched the paper and forcefully pushed it into Student’s face and hair, causing Student to bend backwards and move back several steps towards the wall until [the teacher] stopped pushing her.”

Both the hearing officer who recommended termination and the board that approved it considered the student’s infraction to be a minor one. The Commissioner affirmed: “Pouring glue on a paper is a minor infraction.”   The Commissioner noted that the student’s actions were not disruptive or aggressive toward other students. 

What about the student pushing the glue-smeared newspaper on the teacher’s shirt? The Commissioner said this:

Even if [the teacher’s] rendition of events were believed by the factfinder, an adult teacher shoving a paper covered with glue at a child’s face is disproportionate and unnecessarily degrading to the offense of pouring glue on paper, not to mention unprofessional conduct for a teacher.

Fourth, the general rule is that the district cannot bring up incidents from previous years.  The Commissioner addresses this in a footnote to the decision:

The Notice of Proposed Termination also includes references to seven previous incidents of inappropriate interactions with students.  Inappropriate interactions in prior contract years cannot form the basis of the termination of a current contract and were not considered herein.

That’s the general rule, but sometimes it’s fair to bring up prior year incidents to show that a teacher has been put on notice of what is acceptable and what is not.

Bottom line: in this case, despite the strong protection the law provides, this teacher went too far.  Termination for good cause affirmed. The case is Doggett v. Seguin ISD, decided by the Commissioner on May 1, 2019. It’s Docket No. 022-R2-03-2019.

DAWG BONE:  MINOR INFRACTIONS SHOULD NOT PROVOKE MAJOR USE OF FORCE.

Tomorrow: Revolution continues in Serenity Falls.

HB 2840 tells us five things about public comment at school board meetings.  Superintendents and school board members will need to study this new law carefully, and make any necessary changes in board procedures.  

First, the new law tells us that every member who wishes to address the board regarding a particular agenda item must be allowed to do so.  This one simple change in law could lengthen some board meetings considerably.  Consider school boundary changes for example. There could, in some districts, be hundreds of people who wish to speak to that item.  

Second, this opportunity must be provided to the citizen either before or during the board’s consideration of the item.  While most school districts place the “public comment” section of the agenda at the beginning of the meeting, apparently there have been some governmental entities that have placed it at the end.  One of the stated purposes of this law is to allow Joe Citizen to have his say without having to sit through a lengthy meeting. 

Third, the statute authorizes the board to adopt “reasonable rules” about this, including a rule that would limit a person to a total amount of time to address a particular item. The statute does not limit the board’s rule making authority to that one item. It is just mentioned as an example.  Board presidents and superintendents will want to consider what “reasonable rules” would be appropriate for your district, particularly focusing on those rare situations in which the sheer number of citizens who wish to speak presents practical problems. 

Fourth, your time limit rules must permit twice the amount of time for a person who addresses the board through a translator.  So if you give each speaker three minutes, you would need to give six to the person who needs a translator.  This part of the statute specifically requires this for language translators, but a reasonable accommodation would also be required for a person with a disability who needs a sign language interpreter.  There is an exception to this “twice the time” provision but it only applies if your district has “simultaneous translation equipment.” We’ve seen that at the United Nations, but have not encountered it in a Texas school district, so we think that exception has little application.

Fifth, your rules cannot prohibit criticism, other than those things that are prohibited by law.  Citizens are permitted to criticize any “act, omission, policy, procedure, program or service.”  

HB 2840 will apply to the first board meeting you hold after September 1, 2019.  Procedures and protocols should be discussed and approved by the board before that time. At Walsh Gallegos we are giving this a lot of thought, and are ready to help you adopt procedures that will comply with the statute while maintaining order at your board meetings. Give us a call if you’d like our assistance.

DAWG BONE: YOU DIDN’T REALLY NEED TO GO HOME BEFORE MIDNIGHT ANYWAY, RIGHT?

Tomorrow: Teacher use of force—another Commissioner decision.

The Toolbox is a full day training program designed to help schools serve students with disabilities effectively even when the students present challenging behaviors.  The goal is to maintain safety for all, and at the same time, continue to serve the student who is disruptive or violent.  Unfortunately, such situations sometimes involve Tool #10—calling in law enforcement.  That’s a tool that is available but there are some risks to keep in mind.  So let me tell you about a recent court decision from Katy ISD.

The opening line in the court’s opinion tells us that “A public school officer in the Katy ISD’s police department tased and handcuffed J.W., a 17-year old special education student.” The mother sued the district and the officer, alleging excessive use of force and violations of various legal standards.   The court describes J.W. as a big fellow—6’2” and 250 pounds. He was in the special education program due to an emotional disturbance and an intellectual disability.  These disabilities impacted the student’s ability to control his emotions. 

He got out of control on November 30, 2016 when a card game with another student escalated into bickering and a physical fight. As usual, the parties told different versions of what happened. School officials described a student who was yelling, cursing and hurling a desk across the room. The student denied much of that, but acknowledged that he had walked out of the classroom and was attempting to leave the building in order to “chill out.” 

Things escalated at the doorway when school officials attempted to keep the boy from leaving the building.  This is where the SRO showed up.  Part of what happened was captured on the SRO’s body camera.  It showed the SRO firing a taser.  J.W. screamed and fell to his knees. Five seconds later the video shows the SRO beginning to “drive stun” the student.  This involves holding the taser against the body without deploying the prongs.  The court tells us that “This use of the taser on J.W.’s upper back continues after J.W. is lying face down on the ground and not struggling.”  Another officer then handcuffed the student, and then the SRO pointed the taser at J.W.’s head and said “I did not want to tase you, but you do not run s*** around here, you understand?”  The body camera captured this.

The student had humiliating physical reactions to this, both urinating and defecating on himself. He said that he had difficulty breathing.  The SRO observed this and promptly called for emergency medical services, including the school nurse, who attended to the student. EMS arrived shortly.  After all of this, the student missed several months of school. The mother attributed this to his fears, intense anxiety and PTSD.   The parties ended up in litigation, with the mother asserting that the district had violated Section 504, the ADA and various constitutional provisions.

The SRO asked to be dismissed from the case based on “qualified immunity.”  This protects governmental officials from personal liability unless they violate federal legal standards that are so “clearly established” that they should have known better. Several pages of the court’s decision describe previous cases involving the use of force in the school setting, and the arguments of both sides in this case. Bottom line: the court concluded that the facts here were too unsettled for it to toss the case out at this early stage.  Did the student push a staff member in an effort to leave the building?  The court thought that was an important factor, but the facts were not clear.  Then there was this:

And [the SRO] did not stop using the taser when J.W. stopped resisting.  The record evidence of [the SRO’s] interactions with J.W. shows genuine factual disputes material to deciding whether the tasing itself, its length, and its intensity, were objectively reasonable.  These disputes preclude summary judgment.

The court ended up dismissing all of the claims against the district for reasons too complicated to explain here. But the claim against the SRO for excessive use of force is still alive.  When you talk to SROs and other law enforcement personnel about the use of force, this might be a good case to bring up. This is particularly true in light of the new restrictions on the use of “aversive techniques” that go into effect next school year.

The case is Washington v. Katy ISD. Decided by the federal district court for the Southern District of Texas on June 5, 2019.  We found it at 74 IDELR 157.

DAWG BONE: THE 4^TH AMENDMENT PROHIBITS THE USE OF EXCESSIVE FORCE.

Tomorrow: new rules for public comment at board meetings.

Welcome back, Readers!  Today we resume the Daily Dawg after a two week break.  We are refreshed and ready for the upcoming school year.  And we are pleased and excited to announce that our law firm now has a presence in the Panhandle!  As of last Monday, Walsh Gallegos has an Amarillo office in the person of Andrea Gulley. 

Andrea is an experienced school lawyer, most recently serving as in-house counsel for Amarillo ISD.  We have known her for many years and were delighted when she expressed interest in joining our law firm.  Andrea brings a strong background in both general school law and special education matters. She understands how school districts work and has excellent communication skills to facilitate good decision making by boards and superintendents.

It just so happens that I am headed to Amarillo this week for a Toolbox workshop at Region 16 on Wednesday.  That means there is time for a Sod Poodles baseball game on Tuesday night, when Andrea and I will be hosting a few of our Panhandle friends. 

Hello Panhandle!!

DAWG BONE: WELCOME TO ANDREA GULLEY, OUR NEWEST ATTORNEY!

Tomorrow: Toolbox Tuesday!!

This week the Daily Dawg has been focused on SB 712, the new law prohibiting the use of “aversive techniques.”  The statute prohibits the use of techniques designed to influence student behavior by intentionally inflicting significant physical or emotional pain or discomfort.  The statute specifically exempts corporal punishment from that definition.

That caused me to remember a school board meeting I attended over 30 years ago, when a parent filed a complaint that a teacher had paddled the parent’s child.  The complaint went to the school board. The teacher, knowing that the community was strongly on her side, asked for an open meeting.  I was there to advise the board. 

 A couple of things became clear very quickly.  First, the teacher had been paddling students in this school district since the Great Depression.  Second, she was much respected and revered. Third, the parent was a newcomer to the district who apparently did not know that he was now in the Confederacy.

The parent was well represented by an able attorney, but he didn’t have much to work with. As I recall, the cross examination of the teacher went kinda like this:

LAWYER:  And did you paddle the boy?

TEACHER: Yes.

LAWYER: When you paddled him, did you intend it to hurt?

She seemed a little confused by the question and hesitated for a moment. In that moment, what I observed was that a majority of the board members were nodding their heads, remembering how much it hurt when she paddled them.

TEACHER: Yes, I intended it to hurt!! 

I had the privilege of going into closed session with the board, which did not last long.  But what I learned behind closed doors confirmed my guess: a quorum of the board members had been paddled by this teacher and considered themselves better for the experience.  Parent complaint: DENIED.

We’re going to take a two week break from the Daily Dawg, folks. We’ll be back on July 15.  Until then.....carry on.

DAWG BONE: AND HAPPY 4TH OF JULY!!

Here comes the football team on a steaming hot day in August, ready for practice.  There are 40 students on the team, and 38 of them are jogging out from the locker room, ready to go.  The coach instructs all of them to take three laps around the track to warm up. 

Five minutes later, as our 38 players are working their way around the track, the last two players emerge from the locker room. They are late. There is a penalty for being late.  The coach instructs them to run up and down the stadium stairs until he tells them to stop. 

Is this a tried and true traditional coaching practice?  Or is it an “aversive technique” now prohibited by Chapter 37?  Maybe it’s both. 

Consider: an “aversive technique” is one that is intended to reduce the likelihood of a behavior reoccurring.  Why does the coach make the players run the stairs? To reduce the likelihood of them being late again.  So far, this looks like an “aversive technique.”

The second component of the definition is: “intentionally inflicting on a student significant physical...pain.”  Will running the stadium stairs on a hot day in August inflict physical pain?  Yes.  Will it be “significant” pain?????  Don’t know.  But that word—“significant” is awfully subjective.

You might want to be sure your coaches are aware of SB 712.

DAWG BONE: MAYBE THE INSTRUCTION SHOULD BE: “RUN THOSE STAIRS UNTIL YOU START TO FEEL SIGNIFICANT PHYSICAL PAIN.  THEN YOU CAN STOP.”

Tomorrow:  Memories of significant physical pain.

This week we’re devoting several days of the Daily Dawg to SB 712, to be codified at T.E.C. 37.0023.  The law prohibits the use of certain “aversive techniques” and offers 13 (13!) examples of what is considered such a technique.  Here’s a summary of the 13.

1.  Anything that is “designed to or likely to cause physical pain” other than authorized corporal punishment.

2.  Electric shocks, the use of “pressure points or joint locks.”

3.  Spraying a noxious, toxic or unpleasant spray, mist or substance near the student’s face.

4.  Denying a student adequate sleep, air, food, water, shelter, bedding, physical comfort, or access to the bathroom.

5.  Ridiculing or demeaning a student in a manner that adversely affects or endangers the learning or mental health of the student, or constitutes verbal abuse.

6.  Employing a device that simultaneously immobilizes all four extremities, including any procedure that results in what is known as prone or supine floor restraint.

7.  Actions that impair breathing, including placing an object on or over the mouth or nose.

8.  Restricting circulation.

9.  Securing the student to a stationary object while the student is sitting or standing.

10.  Inhibiting, reducing or hindering the student’s ability to communicate.

11.  Chemical restraint.

12.  Any “timeout” procedure that precludes the student from making educational progress, including isolating the student by use of physical barriers.

13.  Depriving the student of the use of one or more senses. There is an exception for this one for techniques that a) do not cause pain; and b) are approved in the IEP or BIP.  This looks to be about headphones.

Suggestion: get a group of your colleagues together and review this list.  Which of these are teachers most likely to be accused of?  Are you concerned about the subjectivity of some of the terms in the law? 

Tomorrow, the Dawg will comment on one of these 13 techniques.

DAWG BONE: T.E.A. WILL PROVIDE FURTHER GUIDANCE, BUT THE LAW WILL BE IN EFFECT BEFORE WE GET THAT.

Tomorrow: A specific concern.

The Toolbox is a full day program aimed at campus administrators and special education staff who deal with students in the special education program who engage in challenging behaviors.  When I present The Toolbox, I’m describing the ten “tools” that are available to maintain safety and serve each student appropriately. The emphasis is on what to do, but sometimes we need to talk about what NOT to do.  The Texas Legislature just added a bunch of things to the DON’T DO list. 

One important new law, SB 712, will now be found at T.E.C. 37.0023.  It’s about “aversive techniques,” all of which are now on the DON’T DO list.  The statute defines an “aversive technique” as something that is 1) intended to reduce the likelihood of a behavior reoccurring by 2) intentionally inflicting on a student significant physical or emotional discomfort or pain.

Doesn’t corporal punishment fit that definition?  Yes. But the statute specifically exempts corporal punishment from the definition. So it remains legal, subject to local policy and the parent’s right to prohibit it.

The statute enumerates 13 examples of “aversive techniques” under this umbrella definition.  Today, I’m going to make a few general remarks about SB 712. Tomorrow, we’ll dive into more specifics.

General remarks: first, this new law will apply to all students, not just those in your special education program.  Second, it applies to all school employees, volunteers, and independent contractors.  This would include an SRO or contracted police officer.  Third, this new law is now part of Chapter 37, which does not apply to charters. So charters are not barred from using some of the 13 aversive techniques.  However, some (not all) of the 13 enumerated “aversive techniques” could probably be classified as child abuse, and certainly that would apply to any school.  Why would the legislature protect students in traditional schools from aversive techniques, but not those in charter schools?  I don’t have a good answer to that.

DAWG BONE: SB 712: ONE OF THE MOST IMPACTFUL NEW LAWS.

Tomorrow: More on SB 712.

Here we are knee deep in June, but I’m thinking about the start of school. How bout you?  This year I will again traverse the Great State of Texas presenting the annual Back to School program—an all-day affair highlighting what busy school administrators need to know about the law.  This year we have A LOT of new laws to talk about. On top of that, we will provide the annual review of important judicial decisions affecting special education, Section 504, personnel issues and all the rest. 

I’m pleased to report that for three of the BTS presentations I will be joined by Sarah Orman, a senior attorney with the Texas Association of School Boards.  Sarah will be able to provide the TASB perspective on new legislation.  TASB staff will be updating your school policies over the summer and Sarah will be able to give us the scoop on new policies and their practical implications. 

Personal note: it’s a particular treat for me to have Ms. Orman join me on these presentations. As many of you already know, her name used to be Sarah Walsh. She’s my Firstborn Child, and now, besides being an excellent lawyer and presenter, the mother of the Most Amazing Grandchildren Ever.

Here’s the Back to School schedule:

September 10:             Region 7                                              Kilgore

September 12:             Region 11                                            Fort Worth (with Sarah Orman)

September 13:             Region 17                                            Lubbock (with Sarah Orman)

September 17:             Region 18                                            Midland/Odessa

September 23:             Richardson Civic Center                    Richardson (with Sarah Orman)

September 27:             Region 2                                              Corpus Christi

October 1:                   Bryan County Expo                            Bryan

October 3:                   Friendswood ISD Annex                    Friendswood

October 10:                 New Braunfels Civic Center       New Braunfels

You can sign up for one of these programs at www.edlaw311.com.  Hope to see you there!

DAWG BONE: 14^Th ANNUAL BACK TO SCHOOL! BE THERE OR BE SQUARE!!

Tomorrow: Toolbox Tuesday!

DEAR DAWG: Snort here.  Rip Snort.  Intrepid Reporter. Friend of the Truth. 

Trouble comes to Serenity Falls ISD, Dawg.  We have two new board members who are stirring the pot, sticking burrs under the saddle, fomenting insurrection.  At the most recent meeting, out of nowhere, board member Heather Soft (yes, that’s her name) made a motion to change the name of the district to SERENITY FALLS INTERDEPENDENT SCHOOL DISTRICT.  This surprise motion was quickly seconded by our other new board member Misty Hope (yep—real name). 

Ms. Soft supported her motion by citing numerous sources for the idea that excessive “independence” is fracturing our society, that we should recognize that no man is an island, that we are all in this together, that the “self-made man” is a myth and that we should recognize that the achievements of one individual person actually reflects the collective efforts of the entire web of interrelated, interdependent entities that work together.  “It takes a village,” she said, which caused a few fellow board members to give her the side eye, wondering if she is, perhaps…..a Hillary supporter.

Ms. Hope joined right in, bemoaning the myth of the rugged individual and how it has led to isolation, drug abuse, depression and suicide at record levels.  She argued that a change of name for the school—from Independent to Interdependent—would send a strong message of support for those seeking healing of our divided society.

To say that the rest of the board was surprised would be an understatement.  Board president I.C. Jones quickly ruled the motion out of order as there was nothing on that night’s agenda about changing the name of the school district. Soft and Hope were heard to grumble afterwards about a “power play” by “the man” to crush those who speak “truth to power.” 

I think this will not be the last we hear of this, Dawg.  Your thoughts?  SNORT.

DEAR FRIEND OF THE TRUTH: Wow! Exciting times in Serenity Falls!  It’s good to see fresh insights on the school board. The Dawg holds it that diversity of thought on the board is a good thing, as long as the board members are respectful of each other.  As far as the legalities, your board president did the right thing in shutting this down.  Changing the name of a school district is a big deal and it would have to be specifically listed as an agenda item before the board could even discuss it.  So it sounds like Ms. Soft and Ms. Hope need a little schooling on the Texas Open Meetings Act.  But their next move, no doubt, will be to ask the board president to put this on the agenda for the next meeting.  When that happens, Mr. I.C. Jones should take a look at board policy regarding how things get put on the agenda. This is probably at Policy BE Local. Many boards require an item to be added to the agenda at the request of two board members.  If that’s your policy, you are headed for an interesting board meeting!  Keep us posted, Snort!

DAWG BONE: SOFT AND HOPE LEADING THE WAY IN SERENITY FALLS. SOUNDS ABOUT RIGHT.

One more week until our summer break, Readers.