Let’s imagine a high school social studies class in which the topic of the day is school safety—a topic that directly affects the students on a daily basis. The teacher’s lesson plan is designed to make sure that the students understand the legal parameters of the discussion.  The class has a lively discussion.  Some of the students wonder why we don’t have stronger laws about gun control.  Others are worried about laws like that infringing on their right to protect their own safety by owning a gun.  The teacher’s job is to make sure that the students know and understand where the laws come from and how they might be amended. 

In the last five minutes of class, the teacher compliments the students on the respectful conversation they have had about a controversial issue.  She then makes the following statement:

“You know you can have a voice in the discussion of this issue. If you think we need changes to our laws, you can contact your representatives in the state legislature or the U.S. Congress.  Active and involved citizens are good citizens. So I encourage you to let your voices and your opinions be heard.  Here is a list of names and addresses for the representatives that serve our community.”

According to a bill passed by the Texas Senate, the teacher has just violated the law by engaging in “electioneering.”  SB 1569 would make it illegal for an “employee” of a school district to use “public funds or resources” to “facilitate any activity by a student….for advocacy communications to an elected officer or employee of an elected officer for or against a matter for which the officer may vote or take an official action.”

The teacher is on the job, being paid by the district, and therefore, she is using “public funds or resources” to facilitate this “advocacy communication.”  So according to a pending piece of legislation, she is not carrying out her civic, and professional responsibility—she’s engaged in a nefarious, illegal act of electioneering.

SB 1569 is an abomination.

It’s unnecessary.  We already have laws that prohibit the use of public funds and resources for electioneering. 

It’s discriminatory.  It applies to employees of public schools, but not to employees of cities, counties, state agencies, or universities. What’s that about?

It’s anti-public education.  Obviously.  That’s the intent.  

It’s contrary to the TEKS: “Citizenship. The student understands the importance of voluntary individual participation in the U.S. constitutional republic.”  19 T.A.C. 113.44(c)(15).

Let’s hope this thing does not see the light of day in the House.

Now remember: if you advocate about this issue, be sure to do so on your own time, using your own resources.  As mentioned above, electioneering is already a violation of law.

DAWG BONE: LOOKS LIKE SOME LEGISLATORS HAVE NOTICED THAT TEACHERS ARE GETTING MORE INVOLVED!

Tomorrow: Toolbox Tuesday!

Sooner or later the law is going to have to recognize that our standards for LRE—Least Restrictive Environment—are based on an outdated model from the 1960s.  Things have changed.  In the 1960s, facilities that served only students with disabilities were pretty shabby.  The term “warehouse” was often used.  Children—and adults—with disabilities were frequently shunted off to poorly funded institutions with low paid staff where services were minimal. Thus our fellow citizens with disabilities were hidden from view.  There were many reports, later, of abuse and neglect.

The emphasis in the law about serving students in the LRE was a direct response to this. The idea was a good and noble one—let’s bring these people out of the shadows, into our communities and into our general classrooms where the other students are.  From its first enactment in 1975 the law now known as IDEA incorporated a requirement that students with disabilities be served in the LRE. If you want a simple, non-legalese definition of LRE try this one:  it’s the place where the student would have maximum interaction with non-disabled peers, while still receiving the special services the student needed. 

In 2019 things are different.  While there are still reports of abuse and neglect in some institutions that serve people with disabilities, there are also a growing number of private schools specifically designed to serve students with disabilities.  I’ve not done any research on this, but my impression is that many of these are very good schools.  Why wouldn’t they be? They have the advantage of a tightly focused mission statement. They are not attempting to serve the vastly diverse population we find in the public schools. They are focusing on a narrow niche of students, all of whom have similar needs.  They can benefit from the best research and seek out teachers who want to teach the type of children they serve.  They receive grants, benefit from fundraising activities and charge a lot of tuition to those who can afford it.

The Benedictine School in Maryland is one of those schools.  The Benedictines have been serving children and adults with developmental disabilities since 1959 and they currently have a 4.6 average score on Google. See www.benschool.org. 

So let’s assume that the Benedictine School is an excellent school for a child with disabilities.  Let’s assume that it can provide a quality of services that the public school simply cannot match.  Many parents would want their special needs child to attend such a school.

But there is a problem.  The only students at the Benedictine School are students with disabilities.  Automatically, therefore, it is more restrictive than whatever the public school will offer.  This issue came to a head in a case recently decided by the 4^th Circuit.   The parents of the student in the case did not want their daughter to spend time with her non-disabled peers. They believed it would be better for their daughter to be with kids who were more like her.  Maybe it would be better, educationally, but the 4^th Circuit held that it would not satisfy the legal standard.  Key Quote:

[The parents] argue that they are not urging [the school district] to increase the number of hours that [the student] spends with her peers who are not disabled; instead, they contend that the LRE for [the student] would include more time among peers with disabilities, and they seek placement in a private school to achieve that outcome.  This argument miscomprehends the LRE requirement, which is defined in terms of the extent to which children with disabilities “are educated with children who are not disabled.”  (Emphasis added).

Here’s a prediction: in the coming years there will be more parents who feel like the parents in this case. They don’t care so much about the traditional notion of LRE.  They want their child to get the best possible education, and if that happens to be in a school that only accepts students with autism, or learning disabilities, or some other disability, they will be fine with that.  When parents who believe that way reach critical mass, we might see changes in the law. In the meantime, LRE means the placement that offers the most time with the non-disabled students.

That’s why the parents lost the argument in R.F. v. Cecil County Public Schools.  The 4^th Circuit issued this decision on March 25, 2019.  We found it at 919 F.3d 237.  

DAWG BONE: LRE IS NOT ABOUT QUALITY. IT’S ABOUT WHO IS IN THE CLASSROOM WITH YOU.

The Dawg barks again on Monday. Be there!

Do you have a clear understanding of exactly how the law applies to the search of a student’s cell phone?  No?  Well, then, you are right in line with the 11^th Circuit, which recently concluded that the legal parameters about cell phone searches by school administrators are anything but “clearly established.”

The plaintiff tried to pin personal liability on the assistant principal for searching a student’s cell phone.  The A.P. responded with a Motion to Dismiss based on “qualified immunity.”  The A.P. would be entitled to immunity unless he violated legal standards that are “clearly established.”  The court held that the A.P. was entitled to immunity because the law is not “clearly established.”

This all goes back to the case in 1985 when SCOTUS decided that the 4^th Amendment applies to searches of a student’s personal belongings, New Jersey v. T.L.O.  The Court ruled that the search would be constitutionally permissible if it was “justified at the inception” and “reasonable in scope.”  So in light of that decision, let’s think about what is “clearly established” and what is not. 

It’s clearly established that the search of a student’s belongings, such as a cell phone, is a “search” under the 4^th Amendment.  It’s clearly established that such a search must be “justified at inception” and “reasonable in scope.”  But the application of those two standards to a particular set of facts puts you in a lot of “not clearly established” territory. 

Context: this came up when an assistant principal searched a student’s cell phone looking for evidence that she was sending out ugly, demeaning texts about a classmate. Why would the A.P. do this?  Because the targeted student reported it, two other students confirmed it, and school policy prohibited bullying and disrespect.  Based on that, the court held that the search of the cell phone might very well be “justified at inception.”

The analysis of “reasonable in scope” was a slightly closer call because the A.P. did not just look at the text messages sent to other students. He also explored communication with family members and an ex-boyfriend.  If I’m the lawyer for the plaintiff, I’m going to scream “fishing expedition!” But the court held that this fell within the murky standards of the law, and thus, was not clearly established as a violation of the Constitution. The court pointed out that the student acknowledged that she sometimes used labels or emojis rather than names to identify people in her contacts list. So the court gave the A.P. the benefit of the doubt, holding that it was not “clearly established” that this was an excessively intrusive search.

The Dawg’s advice about searches remains as it has been.  Pause before conducting a search. Ask yourself two questions: what am I looking for? Why do I think it might be where I am looking?  The answer to these questions should be based on sensory data—what I saw, heard, or smelled.

Here, the A.P. was looking for nasty text messages that violated school policy. He was looking at a particular student’s phone because three other students had told him he would find the text messages there.  By the way: he found nothing.  But that did not make the search illegal.  It was within the not so clearly established standards for searches that the courts have given us.

The case is Jackson v. McCurry, decided by the 11^th Circuit Court of Appeals on March 12, 2019.  We found it at 2019 WL 1122999.

DAWG BONE: QUALIFIED IMMUNITY HAS SAVED A LOT OF EDUCATOR CAREERS.

Tomorrow: Is our sense of LRE outdated?

Dear Dawg: Snort, here.  Rip Snort. Intrepid Reporter. Hard Hitting Investigative Journalist, and Friend of the Truth. Dawg, I have been contacted by a young woman whose rights have been trampled upon by the local educrats.  The young woman’s 12-year old son has been labeled a “bully” by the local school officials  In accordance with her rights under federal law, the mother sought 1) copies of any records along these lines held by the school; and 2) an amendment of these records, specifically, a deletion of any reference to “bullying.”  The school has refused both requests.  Even worse, the school has not even allowed her to have a hearing about the request to amend records.

As you well know, Dawg, this lady is entitled to that hearing. It’s guaranteed by the Family Educational Rights and Privacy Act (FERPA).  Your faithful Intrepid Reporter and Friend of the Truth is no lawyer, but I know a FERPA violation when I see one.  I have advised this woman to take her case to the Family Policy Compliance Office (FPCO) for a ruling.  If she is not satisfied there, I told her the next step would be a lawsuit over the FERPA violation.  Thought you might like to know.  SNORT.

DEAR FRIEND OF THE TRUTH: Well, Snort, you got one thing right: you are no lawyer. If you were, you would know that the Supreme Court long ago put the kibosh on any private lawsuits alleging a violation of FERPA. See Gonzaga University v. Doe, (2002).   Moreover, FERPA gives parents the right of ACCESS to student records, but not copies.  As far as getting the records amended, FERPA permits this only if the records are inaccurately recorded, misleading or a violation of privacy.  Parents are not entitled to a hearing to challenge a substantive decision, such as the classification of behavior as “bullying.”  FPCO issued a Letter to Anonymous about this in 2017.  Key Quotes from the letter:

…an educational agency or institution is not required by FERPA to afford a parent or eligible student the right to seek to change substantive decisions made by school officials, such as grades or other evaluations of a student.

…this right [to seek a change in the records] cannot be used to challenge a grade or an individual’s opinion, unless the grade or the opinion has been inaccurately recorded.

Thanks for keeping us in the loop! This FPCO Letter to Anonymous was issued July 20, 2017 and we found it at 117 LRP 42291.

DAWG BONE: CAN YOU IMAGINE HAVING TO PROVIDE A HEARING TO ANY PARENT WHO THOUGHT THE C SHOULD BE A B?  OR THE B AN A?

Tomorrow: Another A.P. searches another student’s cell phone.  Another A.P. gets sued.

I’m pleased to report that Toolbox 4.0 has made its debut! My law partner, Denise Hays, and I presented the new and improved version of the Toolbox at Region 7 in Kilgore last Tuesday. It was delightful to visit East Texas on a beautiful spring day and sample gator tacos—a new one for me—from The Catch, a Kilgore restaurant. I recommend it!

For today’s Toolbox Tuesday we will tell you about a letter from OSEP that addresses what I call the “shouldaknown kids.” These are students who are NOT in your special education program, and yet, they are entitled to the legal protections of the special education law, including a manifestation determination prior to a long term DAEP assignment. The law says that there are some kids that the district is “deemed to have knowledge” that they fall into this category. In other words, “you shouldaknown.”

Who are they? They fall into three categories.

*First, there are students whose parents requested a special education evaluation.

*Second, the students whose parents expressed concerns in writing that the child may need special education services. This written expression of concern must be addressed to supervisory or administrative personnel, or to one of the child’s teachers.

*Third, students for whom a school employee expressed “specific concerns about a pattern of behavior demonstrated by the child.” This expression of concern must go to the special education director or other supervisory personnel.

Students are in one of these three categories only if the request or expression of concern occurs prior to the offense for which disciplinary action is proposed. If mom requests an evaluation on Monday, and the student assaults a teacher on Tuesday, the kid is protected by the law. If the assault is on Monday and the request is on Tuesday, not so.

There are some other specifics about how this works laid out in the regulation at 34 CFR 300.534, but this gives you the basics.

So let’s think about the practical problems that arise when a student falls into the “shouldaknown” category. Consider: the district is expected to conduct a manifestation determination review (MDR) but the student has not even been evaluated, much less determined to be eligible. How does that work? There is a tight timeline (10 school days) for completion of the MDR. Can the district postpone the MDR until the evaluation is completed?

OSEP says no. As the letter points out, the regulations allow for no exceptions to the timeline for conducting the MDR. If the evaluation can be completed prior to that deadline, fine and good. The ARDC will be ready to make an eligibility determination and an MDR. But that will rarely happen. So what do we do if we are unable to complete the evaluation that quickly? OSEP tells us that the school must use available information to determine if the behavior of the student was a manifestation of the “suspected disability.” The letter also states that parents must be given notice of the procedural safeguards they enjoy in conjunction with proposed disciplinary action. Referring the parent to the website where the procedural safeguards are posted is not adequate:

…the public agency would not meet its obligation to provide a parent the notice of procedural safeguards by simply directing a parent to the web site. Rather, a public agency must still offer parents a printed copy of the procedural safeguards notice.

If you are forced to make an MDR based on a “suspected disability” it would seem prudent to also offer to come back and take another look at it after the evaluation is complete. If the evaluation reveals that the student does have a disability that qualified the student for special education, the ARDC can take a second look at the MDR, this time dealing with the established disability—not the suspected one.

This comes from Letter to Nathan, which was issued by OSEP on January 29, 2019.  We found it at 73 IDELR 240.

DAWG BONE:  WHAT….YOU WANTED IT TO BE EASY?

Tomorrow: Hard Hitting Reporter Rip Snort is on to something.  Or thinks he is.

Fourteen states have enacted laws designed to enhance the freedom of student journalists. These laws came about in response to a 1988 SCOTUS decision that clipped the wings of budding Anderson Coopers. SCOTUS held that school administrators could censor school sponsored publications, such as the student newspaper, yearbook, and school play, so long as they had “legitimate pedagogical reasons” for doing so, Hazelwood v. Kuhlmeier. Texas is not one of the 14 states, but we do have bills pending that would add the Lone Star State to the list: HB 2244 and SB 514.

These laws, in general, allow students to express themselves in school sponsored publications in any manner that does not cause a major disruption of school. Of course libel and obscenity must be avoided, but censorship based on “legitimate pedagogical reasons” would no longer be permitted.

One of these laws, the Kansas Student Publications Act, (KSPA) was discussed in litigation arising out of a student walkout/protest after the Parkland school massacre. The lawsuit alleged that school administrators barred student journalists from a part of the protest, and seized the camera that had been provided to a student reporter for her work on the student newspaper. The court held that the KSPA could be enforced through a “private right of action.” This is legalese for “you can be held liable for violating this law.” The court also held that the allegations about barring the student reporters and taking away the camera were sufficient to allege a viable claim under the Act.

It will be interesting to see if Texas enacts a law along these lines. In the meantime, can you guess which 14 states have already done so? You will be surprised at some of them….like Kansas, for example. The Dawg offers a free one year extension of your Daily Dawg subscription for the first reader to correctly identify all 14 states. Send your responses to jwalsh@wabsa.com. To do your research on this, check out the Student Press Law Center: www.splc.org.

The case from Kansas is M.C. v. Shawnee Mission USD No. 512, decided by the federal court for the state of Kansas on January 28, 2019. We found it at 2019 WL 339545.

DAWG BONE: KANSAS??? REALLY?????

Tomorrow: Toolbox Tuesday looks at the “ShouldaKnown Kids.”

Tomorrow marks the 20^th anniversary of the school shooting in Columbine, and the first anniversary of the student walkout in Shawnee Mission, Kansas.  The students in Shawnee Mission organized a brief walkout as did thousands of other students across the country after the Parkland school massacre.  The students later sued the school district alleging that their First Amendment rights had been violated.  The district’s Motion to Dismiss the case has been denied.  There are lessons to be learned from this.

Lesson one: Don’t inform parents and students that the student walkout is not “school sponsored” and then, in the litigation, claim that it was.  Schools have more authority to restrict student speech in school sponsored publications, like the yearbook or the halftime show.  So in an effort to defend the actions of school administrators who shut down kids making speeches about gun control, the lawyers for the district argued that this walkout was “school sponsored.” It’s true that the walkout happened during school hours and was permitted to happen.  The school tolerated it, but that’s not the same as “sponsoring” it.  In fact, the lawsuit alleges that the school informed the parents in advance that the walkout was student-led, optional, and not sponsored by the school. 

Lesson two: If you permit students to organize a walkout over a controversial political issue, don’t try to restrict what they say in their speeches.  The district adopted some guidelines for what could be said during this walkout. Students were to avoid discussing guns, gun control or school shootings.  Instead, they were to focus on school safety.  The district’s spokesperson apparently thought that the school had to take this stance.  The lawsuit alleges that she said “As a public institution, we cannot take a stand one way or the other on Second Amendment rights.”  And yet, according to the suit, that’s exactly what the school did. When student speakers began talking about school shootings and advocating for gun control measures, they were shut down.  So the school could hardly claim neutrality with regard to “Second Amendment rights.”

Lesson Three: The Tinker standard is alive and well.  The court applied the “material and substantial disruption” test to this situation, and found that the allegations in the suit indicated that there was no “reasonable forecast” of such a disruption. These student walkouts were limited in time and specifically permitted to occur.  In fact, the district informed the parents that no students would be disciplined for participating. 

It’s interesting to note that what seems to begin with a school effort to encourage students to exercise their Free Speech rights ends up with a lawsuit alleging that the school infringed on those rights. But if the allegations in the suit prove to be true, that’s exactly what happened.  You can’t allow a protest and then dictate what opinions the protesters will express.

The case isn’t over and we shall see what happens next.  There is another issue in this particular ruling that bears on student journalists. We will take that one up on Monday. 

The case is M.C. v. Shawnee Mission USD No. 512, decided by the federal court for Kansas on January 28, 2019.  We found it at 2019 WL 339545.

DAWG BONE: IT WASN’T THE SCHOOL THAT WAS EXPRESSING AN OPINION ABOUT THE SECOND AMENDMENT—IT WAS THE STUDENTS.  YOU HAVE TO LET THAT HAPPEN.

The Dawg barks again on Monday.

We can learn several things from the recent decision of the Court of Appeals involving a tragic bus accident that led to a student’s death. Texas law provides “governmental immunity” to school districts, which limits liability considerably.  However, districts can be liable when a school employee is negligent in the “use or operation” of a motor vehicle.  In this case the plaintiffs alleged four specific acts of negligence.  The court held that the district was immune from liability for three of them. This meant that the court lacked jurisdiction to even consider those claims.

First, there was the claim that the district was negligent in how it trained its bus drivers.  The court held such an allegation did not involve the “use or operation” of the bus. Therefore even if the district did a poor job of training its drivers, it could not be held liable for this.

Second, the plaintiffs alleged that the district was sloppy with vehicle inspection and maintenance.  That didn’t work either.  Without addressing the facts of the situation the court dismissed this claim because it did not relate to the “use or operation” of the bus.

The third claim that did not work was about negligent supervision on the bus. For example, the plaintiffs alleged that the two teacher chaperones were both sitting in the front of the bus, rather than spacing out as required by district rules.  True? We don’t know. The court held that it didn’t matter. This would be, at best, a claim of negligent supervision, which is not the same as negligence in the “use or operation” of the bus.

But the final allegation was that the driver was driving too fast.  That one was sufficient to invoke the court’s jurisdiction and keep the case alive. The court held that allegations of driving at an unsafe speed, if proven true, would “demonstrate practical, purposeful actions which are encompassed with the definitions of ‘operation’ and ‘use.’”

The case is Harlingen CISD v. Miranda, decided by the Court of Appeals for the 13^th District serving Corpus Christi and Edinburg.  It was decided on March 14, 2019, and we found it at 2019 WL 1187152.

DAWG BONE: I BET YOU THOUGHT YOU KNEW WHAT “USE OR OPERATION” MEANS.

Tomorrow: How not to handle a student walkout.

In a very brief opinion, the 5^th Circuit has affirmed the ruling of the lower court in the legendary “clock boy” case from Irving ISD.  Don’t remember the clock boy?  Let me refresh your memory.

On September 14, 2015, a 14-year old freshman at MacArthur High School in Irving ISD brought a homemade contraption to school.  He showed it to his geometry teacher, who told him it was “really nice.” Later he showed it to his English teacher.  She asked him “Is that a bomb?”  “No,” the boy responded, “it’s an alarm clock, see?”

Thus began the transformation of this obscure young man from an anonymous high school student into his new destiny: the Irving Clock Boy.

Just google it and see what happens. 

As most readers know, the boy was questioned, handcuffed, arrested, charged with a crime and suspended from school for three days.  The alleged crime was possession of a “hoax bomb.”  Later all charges were dropped, and the Irving police chief acknowledged that the entire arrest was a mistake.

The parents sued the City of Irving, the school district, the principal and several police officers.  In a decision handed down on March 13, 2018, federal judge Sam Lindsay dismissed all of the claims.  Now, the appellate court has affirmed that decision.

The case is largely about the legal doctrine of “qualified immunity.”  Qualified immunity is designed to protect governmental officials who have to make tough judgment calls.  The idea behind qualified immunity is that a government official (police officer, teacher, administrator) should not have to face legal liability just because they made a bad call.  They should be held liable only when they do something that is colossally stupid or in clear violation of the law.  I’ve not seen a case that uses the term “colossally stupid” but I think that gets at the general idea. Here is what the cases do say:

Qualified immunity is designed to protect from civil liability “all but the plainly incompetent or those who knowingly violate the law.”

The lawyers for the clock boy argued that the overreaction of the Irving officials in this case satisfied that standard. The court disagreed. In so doing, the court separately analyzed the actions of the principal, the arresting officers, and the other police officers.  For our purposes, we will focus on the school principal.

The principal gave the “clock boy” a three day suspension after he was arrested and charged with possession of a hoax bomb.  As a government official who is responsible for making discretionary judgment calls every day, the principal was entitled to “qualified immunity.”  To overcome that, the plaintiff had to produce evidence that would show that the principal was “plainly incompetent” or “violated clearly established law.”

The plaintiff failed to do that.  In an earlier ruling in the same case, the judge wrote eloquently about the difficulties principals face these days:

Woe unto the principal who fails to act on a potential threat that later becomes a reality!  To hold Principal Cummings, or any other administrator, to this standard places him between the dreaded Scylla and Charbydis.

I don’t know where Scylla and Charbydis are, (east of Waco maybe?) but it certainly sounds like they are akin to the proverbial “rock” and “hard place.” 

After that ruling, the plaintiff was given the opportunity to re-plead his case to try to convince the court that the principal should be held liable. In the amended complaint the plaintiff pointed out something that had not been mentioned before—that the principal failed to comply with a procedure set out in the student handbook.  That procedure read as follows:

LAW ENFORCEMENT AGENCIES (All Grade Levels) Questioning of Students
The principal will verify and record the identity of the officer or other authority and ask for an explanation of the need to question or interview the student at school
The principal ordinarily will make reasonable efforts to notify the parents unless the interviewer raises what the principal considers to be a valid objection. (Emphasis added).

According to the allegations in the suit, which the court was assuming to be accurate, the kid was grilled at length by several armed and uniformed officers without notice to his parents, despite his repeated requests to call them.  In other words, the plaintiff did allege facts indicating that the principal violated, or at least ignored, the student handbook.  Is that a violation of “clearly established law”?

The court said no:

A deviation from an entity’s internal procedures, without more, does not show discriminatory intent or amount to a constitutional violation, as constitutional requirements may nevertheless have been met.

Thus the case against the principal, like the case against the district, was dismissed.  However, this one serves as another reminder of how important it is to follow district policy and procedure. In fact, that “procedure” in the student handbook is taken directly from Policy GRA (Local).  Check out your district’s version of GRA (Local). There is a good chance that your district has adopted the same policy.

The case is Mohamed v. Irving ISD, decided by the federal court for the Northern District of Texas on March 13, 2018.  We found it at 2018 WL 1305455. The 5^th Circuit decision was issued on March 19, 2019 and is at 2019 WL 1299923. 

DAWG BONE: WANT TO AVOID LIABILITY? DON’T DO SOMETHING COLOSSALLY STUPID OR IN VIOLATION OF CLEARLY ESTABLISHED LAW.

Tomorrow:  A school bus accident leads to litigation.

Imagine this scenario: you are the Coordinator for Elementary Special Education.  One morning you are summoned to an elementary school because the staff is fearful that one of the students—a boy with autism—intends to kill or otherwise do harm to students and teachers.  Among other things, the staff has confiscated the boy’s list of the people in the school who are “Subjects for Weapon X.”  You are in Connecticut—not far from Sandy Hook.

Now imagine that you are the boy’s father.  Shortly after you drop your son off at school you get a call from the school asking you to return immediately.  When you arrive at the school you see a fire engine and an ambulance.  You are informed that the school has called for the ambulance to take the boy to the Yale psych ward for an emergency evaluation.

According to the subsequent lawsuit, the dad implored the school not to take the boy away in an ambulance. The last time the little boy saw his mother before she died was when she was loaded into an ambulance.  The dad offered to take the boy, but the Coordinator said no, insisting that “it’s the law” and “there’s nothing you can do about it.”  When the boy saw the police show up he was fearful that they were going to take his father away from him.  According to the suit, the boy said “Please don’t take my father.  My mother died of cancer.  He’s the only person I have; he’s a good guy.”

Things settled down after that.  After a conversation between the Coordinator, the dad, the principal and the police, the school allowed the dad to take his son home. No ambulance. No psych ward.  No emergency evaluation.

But the dad sued the Coordinator, alleging that she intentionally inflicted emotional distress on the young boy with autism. That’s a tough case to prove, and the dad in this case fell short.  The court held that the Coordinator did not humiliate, embarrass or mistreat the student in any way. Key Quote:

Riccitelli [the Coordinator] did not abuse or misuse her authority as a school official or use it as a cloak for misconduct, as it is undisputed that Board of Education Policy required her to take action to ensure school safety under the circumstances as she understood them to be. 

In an era when school shootings are a distinct possibility, you can understand how a situation like this might unravel, even when everyone is acting in good faith. I suspect that’s the case here.  The Coordinator feared for student safety and sought to follow protocol.  The parent reacted strongly in an effort to protect the child.

This is the type of thing we talk about in the Toolbox training that our firm provides. We offer guidance on the ten “tools” available to school personnel when dealing with potentially dangerous situations like this one. 

This case is Suraci v. Hamden Board of Education, decided by the District Court in Connecticut on January 10, 2019.  We found it at 73 IDELR 173.

DAWG BONE: EMERGENCY ACTIONS MAY BE NECESSARY, BUT THEY CAN BE SECOND GUESSED.

Tomorrow: Remember the Irving “clock boy”?