A few months ago the Texas Court of Criminal Appeals shot down a portion of the Texas Open Meetings Act (TOMA).  The court held that the part of the law dealing with a “walking quorum” was unconstitutionally vague.  In an effort to fix that problem, the legislature has passed SB 1640. 

If the governor signs it, SB 1640 will makes it a crime for a member of a governing body (such as a school board) to knowingly engage in any communication concerning an issue that is within the body’s jurisdiction if that communication is part of a series of communications all of which occur outside of a duly called meeting and collectively involve a quorum of the board.  This single communication (text, email, phone call, etc.) might be a criminal act if the member knew at the time that the series of communications would involve a quorum, and would amount to an exchange among the members concerning an issue within the body’s jurisdiction.

Let’s break that down with an example.  Board Member A sends a text message to Board Member B that says “I really like that guy we interviewed for A.D. last night.”  Board Member B responds: “Me too.” 

So far, no problem.  Just two board members are involved.

But suppose that Board Member B’s “Me too” response was cc’d to all of the other board members.  Board Member B has just violated TOMA.  He has knowingly engaged in a communication about school business with a quorum of the board, outside of a proper meeting. 

Suppose that Board Member A responds to the text from Board Member B with “Glad to hear it!”  Has he now violated TOMA?  If he hit “reply to all” he has definitely violated TOMA.  If he only replied to Board Member B, it’s not as clear.  But the case can be made that he knew that all of the board members were in on this “series of communications” and therefore, his participation in it is a violation.

To summarize, it’s an offense if a board member:

A. Knows that his/her single communication is going to a quorum of the board, or is part of a series that will, eventually, involve a quorum; and
B. Knows that the communications are about issues within the board’s jurisdiction.

Is that too vague?  We shall see. Statutes are presumed to be constitutional until a court says they are not. So unless Governor Abbott vetoes it, this new law will be our guiding light regarding communications among board members outside of a board meeting. Be careful.

DAWG BONE: AND DON’T EVER HIT “REPLY ALL.”

Tomorrow: Toolbox Tuesday!!

ERO International LLP claims that Mission CISD owes it a considerable sum of money for work done on the renovation of Mission High School.  When ERO filed suit to collect the dough, the district filed a Plea to the Jurisdiction, asking the court to dismiss the case without looking into the merits of the situation. The district’s position was that it had governmental immunity from this claim, and, therefore, the court lacked jurisdiction.

Now I know that the readers of this blog are public school people. But let’s pause for a moment to think about this from the contractor’s perspective.  Was there a contract between the parties?  Yes.  Was there a dispute over how much was owed under the contract?  Yes. Isn’t that exactly the type of dispute that we take to court?  Yes. So how can it be that the court does not even have the power to weigh in on this?  Can school districts sign contracts with contractors and then ignore them?

The answer to that last question is No.  Districts have to comply with contracts and can be hauled into court for failing to pay what is owed.  But in order to get past the “governmental immunity” enjoyed by school districts the contract has to be in full compliance with Chapter 271 of the Local Government Code.  That Chapter includes the following:

Adjudication procedures, including requirements for serving notices….before bringing a suit…. that are stated in the contract….or that are established by the local governmental entity and expressly incorporated into the contract or incorporated by reference are enforceable except to the extent those procedures conflict with the terms of this subchapter.  Texas Local Government Code 271.154. 

In other words, a school board can adopt a policy that requires certain “adjudication procedures” that must be accomplished before a contractor can file suit.  It can incorporate that policy into the contract.  If it does those two things, the “adjudication procedures” are “enforceable.” 

That’s exactly what happened here. Mission ISD adopted Policy CJ Local, which required a disgruntled contractor to file an “administrative complaint” within 90 days of when the contractor believed that the district had breached the contract.  ERO sent the district a bill and said it was due within 30 days.  The district did not pay it.  That was the alleged breach.  Thus the 90-day timeline began to run when the bill became past due.  However, ERO did not file its “administrative complaint” until almost a year later. 

So the district argued that it still had immunity from this suit: the contractor did not comply with the policy, which was incorporated into the contract.  Toss this case out, Your Honor.

That’s what the appellate court did. 

We need to add that the case may get a rehearing, or go to the Texas Supreme Court.  In this opinion, this court noted that other Texas appellate courts have not viewed the “adjudication procedures” in the same light.  They have not viewed them as a basis to grant a Plea to the Jurisdiction. That kind of disagreement among our Courts of Appeal frequently produces a Supreme Court decision.  So we will keep an eye on this one. 

In the meantime, you want to take a look at the local policy adopted by Mission CISD and ask your school attorney about adopting such a policy and incorporating it into contracts.  The lawyers at Walsh Gallegos are ready to help you with that.

The case is Mission CISD v. ERO International LLP, decided by the Court of Appeals for Corpus Christi-Edinburg on March 14, 2019. We found it at 2019 WL 1187018.  You can find Mission CISD’s policy CJ Local on the district’s website: www.mcisd.net.   

DAWG BONE: GET CREATIVE WITH YOUR CONTRACTS!

The Dawg retires to the Dawg House for the weekend, but will bark again come Monday.

Assuming that Governor Abbott signs it, S.B. 494 will make some changes in our laws pertaining to transparency in government.   This bill makes four significant changes in the law.

 It changes the timeline for the board to call for an emergency meeting, or to add an emergency item to an agenda that has already been posted. Current law requires two hours’ notice. This bill changes that to one. 

1. The bill gives specific examples of situations that would justify emergency action.  The general standard is something that requires “immediate action because of “an imminent threat to public health and safety” or “a reasonably unforeseeable situation.”

2. The bill then offers the following examples of “unforeseeable situations”:

(A) Fire, flood, earthquake, hurricane, tornado, wind, rain, or snow storm;
(B) Power failure, transportation failure, or interruption of communication facilities;
(C) Epidemic; or
(D) Riot, civil disturbance, enemy attack, or other actual or threatened act of lawlessness or violence.  

3. S.B. 494 authorizes the Attorney General to take action to “stop, prevent, or reverse” a violation or threatened violation of the emergency action provisions in TOMA.

4. The bill allows a governmental body to temporarily suspend the timelines applicable to requests under the PIA by declaring that it is experiencing a “catastrophe.” The definition of “catastrophe” is the same as the examples given above justifying an emergency meeting.  So, for example, a school district impacted by a hurricane can have the board notify the AG that it is “currently impacted by a catastrophe and has elected to suspend the applicability” of PIA requirements during the “initial suspension period.”  That initial period can be no more than seven days. It can be extended one time for an additional seven days.

What that means in practice is that all of the PIA requests from the media and others will be put on hold for a maximum of 14 days. The school can handle the catastrophe first, and then worry about those pesky PIA requests.

DAWG BONE:  AREN’T THERE OTHER “CATASTROPHES”?  LIKE NETFLIX NOT WORKING?

Tomorrow: breach of contract suit against district dismissed.

It seems like the Daily Dawg deals with the term “clearly established” just about every week.  This comes up when school employees are sued personally for alleged violations of federal law.  The lawyer representing that school employee (“the Defendant”) will often file a Motion to Dismiss the case, asserting that the Defendant is protected by the legal doctrine of “qualified immunity.”  If this argument works, the Defendant can resume normal life without the fear of personal liability putting clouds in the coffee.  

You folks are entitled to “qualified immunity” even when you violate murky, ambiguous legal standards. But if you violate legal standards that are CLEARLY ESTABLISHED then you are in hot water.  So there are endless arguments over what is, and is not, CLEARLY ESTABLISHED.

The most popular formulation of the standard for qualified immunity is that it protects “all but the plainly incompetent or those who knowingly violate the law.”

This leads to lawyers saying some pretty unflattering things about their clients. Stuff like this:

Boy Howdy, Your Honor, my client screwed up big time on this one. I mean…what the heck was he thinking???? It was a mistake. A bad judgment call.  A very bad one.  But whatever else you might say about my client, you can’t say that he KNEW that he was violating the law.  He doesn’t know doodlysquat about the law!  Believe me, I know. I’ve been trying to school him!  Nor, Your Honor, was he PLAINLY incompetent.  Maybe a little negligent.  Careless.  Unthinking.  In need of vast improvement. But “plainly incompetent”?  I think not!

If the judge buys that argument, the client is off the hook.  Embarrassed perhaps, but dismissed from the case.

This “qualified immunity” is a great thing for educators, but there is a problem. It all hinges on what is “clearly established” and the only thing “clearly established” about “clearly established” law is that it’s not “clearly established.” Here’s the latest example.

A child welfare caseworker in Colorado conducted what amounted to a strip search of a four-year old girl, looking for signs of possible abuse. She took pictures also.  The parent sued the caseworker personally, alleging that she violated the little girl’s right to personal privacy under the 4^th Amendment.   The case went to the 10^th Circuit Court of Appeals, where two of the three judges held that it was not “clearly established” that this was an unconstitutional search.  Thus the caseworker was entitled to “qualified immunity.”  The third judge dissented and would have held the caseworker personally liable. 

SCOTUS declined to hear the case, thus bypassing a chance to clear things up for us.  According to Mark Walsh (no relation), longtime legal editor for Education Week, there are three SCOTUS justices ready to overhaul the law of qualified immunity: Ginsburg, Sotomayor and Thomas.  If there were four, the case probably would have gone to the Supreme Court.  But it didn’t, so the lawyers will continue to argue over what is and is not “clearly established.”

The 10^th Circuit case is Doe v. Woodard, 912 F.3d 1278 (10^th Cir. 2019). The Supreme Court turned it down on May 20^th. 

DAWG BONE: THERE IS NOTHING “CLEAR” ABOUT WHAT IS “CLEARLY ESTABLISHED.”

Tomorrow: Do you know what a “catastrophe” is?

On Toolbox Tuesdays we usually look at a case dealing with the discipline of a student with a disability.  Today we take a slightly different tack.  Let’s think about that very bright student who does not show up for school.  Should we be thinking about referring the child for a Full Initial Individual Evaluation?  Might the student need special education?

We have two recent cases that touch on this issue.   In a Pennsylvania case, the court held that the school failed to adequately evaluate the student for an emotional disturbance.  The school found that the student did have an emotional disturbance, but was not eligible for services due to her strong academic record.  The court acknowledged the good academic record, but noted that the girl was having a lot of trouble with school attendance. Key Quote:

The District here seemingly made no effort to explore a causal relationship between M.J.’s emotional functioning and her attendance, which the District itself points out was adversely affecting her educational performance.

That case is Rose Tree Media School District v. M.J., 74 IDELR 15 (E.D. Pa. 2019). 

The second case, from Minnesota, is another instance of a gifted student who was never a discipline problem, but regularly failed to attend school. The school did not refer the child for testing despite years of excessive absences.  When the parents made a referral, the school conducted an evaluation but determined the student did not qualify due to lack of educational need. The court disagreed:

The Students’ mental health issues—her several diagnoses as of May 2017—appear to have directly impacted her attendance at school.  As the ALJ [Administrative Law Judge] noted, there is no evidence in the record that anything but her mental health issues caused her absenteeism.  The District contends that the Student’s mental health issues and absenteeism did not adversely impact her educational performance because she excelled academically when she attended school.  For the same reasons the ALJ provided, the Court also rejects this argument. 

That one is ISD No. 283 v. E.M.D.H., 74 IDELR 19 (D.C. Minn. 2019).

If we believe that regular attendance is important—and we do—it’s hard to argue that failure to attend is harmless.  Even when the student is smart, and breezes through school assignments when in attendance, it’s hard to argue that there is no educational need. 

In Toolbox terminology this kind of issue comes up when we think about Tool #1—does the student need a BIP?  Remember the standard for consideration of a BIP: does the student engage in behaviors that impede learning of the student or others?  If you are working with a general education student with possible mental health/emotional issues who is not attending school, a referral for testing would probably be a good idea.  If you have a student like that who is already in your special education program, consideration of positive behavior strategies and supports would be a good idea. Tool #1 is the most important tool.    

DAWG BONE: EDUCATIONAL NEED IS ABOUT MORE THAN GRADES.

Tomorrow: Qualified immunity for educators.

Now that the Lege has headed home, it’s time to take a look at what they did.  One of the first bills to get passed by both Senate and House informed me of a good program that I knew nothing about.  S.B. 2075 requires schools to make sure that parents of certain students are notified of the free audiobooks that are available through the Texas State Library and Archives Commission. 

Did you know about that?  I didn’t, but the program has been around for over 100 years.  Take a look at this: https://www.tsl.texas.gov/tbp/index.html. 

This program provides audiobooks and large print texts for people with visual, physical, or reading disabilities.  The new wrinkle in the law is designed to make sure that parents of kids who might have dyslexia are aware of it.  The law requires schools to notify parents of “each student determined, on the basis of a screening under Section 38.003 or other basis, to have dyslexia or a related disorder, or determined on the basis of reading instrument results, to be at risk for dyslexia or other reading difficulties.”

T.E.A. will be required to adopt rules about this and to audit and monitor schools for compliance.   It shouldn’t be too hard to comply with this new law.  If screening or other procedures identify Billy as having dyslexia, or being at risk for it, his parents should be informed of this program. 

DAWG BONE: BOOKS FOR FREE. WHAT’S NOT TO LIKE?

Tomorrow: Toolbox Tuesday!

Officer  Suarez issued a warning letter to a parent in the Sinton ISD. The letter listed the address of a middle school and stated:

YOU ARE HEREBY WARNED AND PLACED ON NOTICE THAT YOU CANNOT ENTER UPON OR REMAIN ON THE ABOVE PROPERTY.  YOU ARE ALSO WARNED THAT YOU MAY NOT HARASS ME IN ANY WAY, WHICH INCLUDES ANY FORM OF COMMUNICATION, EITHER VERBAL OR WRITTEN, OTHER THAN WRITTEN LEGAL NOTICE.

The Warning letter went on to threaten fines and jail time if the parent failed to abide.  It informed the parent that she needed to get permission from a school administrator before entering campuses other than the middle school. The officer verbally told the parent that she was not allowed on any SISD property without permission.

The parent sued the officer, alleging that this stern warning violated her constitutional rights. 

Oh wait—before we tell you about that, we need to tell you what happened before the suit was filed.  The woman was arrested for violating the Warning letter.  But the jury acquitted her of the criminal trespass charge.

THEN she filed the suit. 

The court refused to dismiss the case against the officer, and in doing so, offered some pointers on what should be in a warning letter like this. The court pointed out that a parent’s fundamental parental right to direct the upbringing of their child encompasses “the ability to communicate with a child’s teacher.”  The record in this case was unclear as to whether or not the parent could do that.  Based on that lack of clarity, the court refused to dismiss the case. 

Schools can issue “get off my lawn” letters like this. The courts have consistently upheld that authority. But the communication to the parent should make it clear that the parent will still have the ability to communicate with a child’s teachers.  There may be restrictions on how that happens, but there has to be an avenue.

The court also thought this Warning was too vague. Again, this was the rationale for not tossing the case out of court, but rather, requiring the development of evidence to clear things up. Key Quote:

….the Warning can be read to incorrectly define harassment as any form of communication whatsoever with SISD.  As such, the Warning is effectively a blanket ban on all communication to SISD, potentially violating [the mother’s] constitutional right to direct her daughter’s education.

So the case is not over, and Officer Suarez needs to produce some evidence to clear up these ambiguities.  The case is Roberts v. Sinton ISD, decided by the federal court for the Southern District of Texas on January 3, 2019. We found it at 2019 WL 93308.

DAWG BONE: MAKE SURE THOSE WARNING LETTERS DO NOT CUT OFF ALL COMMUNICATION, ESPECIALLY WITH THE TEACHER.

That’s it for this month, Readers.  Prepare to experience dismay.

The lawsuit against the charter school alleges that the school was deliberately indifferent to a girl’s persistent sexual harassment of one of the boys.  The suit alleges that this resulted in the student suffering various physical ailments, and a loss of educational opportunities.  The boy who was a target of this alleged harassment was a student with a disability, receiving special education services.

So put yourself in the shoes of the lawyer representing the boy.  Do you sue under IDEA, alleging a denial of a Free Appropriate Public Education (FAPE)?  Or do you sue under Title IX, alleging that your client is the victim of sex discrimination?

The lawyers in this case went with the Title IX strategy.  In response, the charter school’s lawyers argued that they should have pursued their claim through a special education due process hearing.  This raises the issue known as “exhaustion of administrative remedies.”  The school’s lawyers contended that because 1) the student had a disability; and 2) he was seeking recovery for educational injuries, the parents were required to “exhaust” their administrative remedies through a special education due process hearing.  Since they had not done that, the lawyers argued, the Title IX case should be dismissed.

That didn’t work.  The court pointed out that the alleged sexual harassment had nothing to do with the boy’s disability. A non-disabled student could have brought the same kind of lawsuit without pursuing an administrative hearing.  Here’s the Key Quote that displays the judge’s reasoning:

C.M.’s Title IX claim is thus unrelated to his disability. C.M.’s complaint asserts that he was denied an educational opportunity—the opportunity to attend Priority Systems Charter School—as a result of student-on-student sexual harassment.  These allegations are materially different from alleging that Priority Systems Charter School denied him a FAPE.  C.M. does not challenge his placement or the level of services provided by his IEP. Instead, the core of C.M.’s complaint concerns his harassment by [the female student] and the Defendants’ failure to intervene in spite of C.M.’s complaints.

So the court refused to dismiss the case on the basis of “exhaustion of administrative remedies.” The court also refused to dismiss it on the basis of a failure to allege a viable cause of action. The court pointed out that the allegations in the suit went far beyond alleged negligence:

Plaintiffs’ complaint, however, alleges something more than mere negligence.  Plaintiffs allege that Defendants failed to respond at all.

So this case will proceed. Having failed to get the case tossed out early, the charter school will have the opportunity to defend the case on the merits.  The case is C.M. v. Cedar Park Charter Academy PTO and Priority Systems d/b/a Priority Charter Schools.  The court’s ruling was issued on April 24, 2019 and we found it at 74 IDELR 98 and 2019 WL 1856414.

DAWG BONE: CHARTER SCHOOLS ARE NOT EXEMPT FROM TITLE IX CLAIMS.

Tomorrow: Stay Off My Lawn letter ends up in court.

We’ve just had elections in some of the school districts in Texas, which means that new people are joining the school board. Congratulations to all of the board members who were chosen, whether they be new to the board or re-elected incumbents.   

Thinking about school board members makes me think about offensive linemen.  This is not intended as a physical comparison.  My research indicates that as of 2015, the average NFL lineman was 6’5” and 312 pounds. That’s the AVERAGE!  I have seen a few beefy board members in the buffet line at the Walsh Gallegos Client Receptions, but rare is the board member who can tip the scales at over 300. 

But here are four ways in which board members are like offensive linemen. 

First, the board needs to act as a team. This does not limit individuality or require everyone to agree on everything. But it means that once the decision is made, the board works as a team to implement the board’s decision effectively.  That’s what the offensive line does.  The left tackle may disagree with the play call, but when the QB takes the ball from the center, the tackle is going to do his part to make the play work.   Boards may vote 4-3 on some tough issues.  Once the decision is made, all seven need to support that decision.  Some boards have adopted ethical guidelines for board members that include “I will respect the majority decision as the decision of the board.”  See BBF Local.

Second, good board members make things happen, but rarely get proper credit for it. And they don’t feel the need for the credit. They are happy to see the play work.

Third, one misplay by a single board member can screw things up for everyone.  Just like one missed block, or one holding penalty negates the good work of the other 10 players on the field.   

Fourth, we don’t usually hear about individual board members unless they do something bad.  The newspaper may report on what “the board” did, but individual trustees are not usually spotlighted unless there is a scandal of some sort—a conflict of interest, an inappropriate remark at the board meeting or on Twitter.  It’s the same with offensive linemen. We never hear their name from the announcer at the stadium unless they are penalized for holding.   

We’re a long way from football season, but still…I hope you find the comparisons useful.

DAWG BONE: A WISE MAN ONCE TOLD ME THERE IS NO BETTER SERVICE A PERSON CAN OFFER THE COMMUNITY THAN TO SERVE ON THE SCHOOL BOARD.

Tomorrow: Charter Schools and Title IX.

We’re just about at the end of the school year, so I offer the main takeaways that we emphasize at the end of the full day Toolbox training.  There are ten tools in the Toolbox, and ten “takeaways.”  Here they are:

1.  Focus on crafting and implementing effective BIPs. 
2. When you are at wits’ end and don’t know what to do to make progress with a particular student, it’s usually a good idea to order up a fresh evaluation.
3. Count your days!  When considering any removal from the IEP placement, be sure you know how many FAPE-Free days have been used up.
4. Beef up the quality of your self-contained units.
5. Be creative and thoughtful in providing “supplementary aids and services” in an effort to keep the student in the LRE.
6. Watch your timelines.
7. Don’t rush into the manifestation determination process.
8. Be proactive in getting your staff trained on effective classroom management strategies.
9. Explore Restorative Practices in the hopes that we use the Toolbox less.
10. Call your school attorney!

If you are interested in the Toolbox Training for your school or ESC, please let me know. 

DAWG BONE: TEN TOOLS. TEN TAKEAWAYS.

Tomorrow: How the school board is like the offensive line.