There is a K-8 charter school in North Carolina that requires girls to wear skirts.  No, really—they do.  But in a 36-page decision a federal court held that this is an unconstitutional requirement. It violates the Equal Protection Clause by imposing a burden on the girls that is not “comparable” to the burden facing the boys:

Yes, the boys at the School must conform to a uniform policy as well. But plaintiffs in this case have shown that the girls are subject to a specific clothing requirement that renders them unable to play as freely during recess, requires them to sit in an uncomfortable manner in the classroom, causes them to be overly focused on how they are sitting, distracts them from learning, and subjects them to cold temperatures on their legs and/or uncomfortable layers of leggings under their knee-length skirts in order to stay warm, especially moving outside between classrooms at the School.

The court shot down the skirt requirement in the dress code pursuant to the Constitution, rather than Title IX.  In fact, the court held that Title IX does not apply to “codes of personal appearance.” So the Title IX claim was dismissed, but the girls were still successful in the suit because of the Equal Protection issue.

This is a school that prides itself on its old-school culture.  The dress code is very conservative for both sexes, but the trustees of the charter school failed to make the case that requiring skirts on the girls was essential to that vibe.  The school was both popular with parents and successful in academics, but again, the defendants failed to show that bare legs on the girls contributed to this success.  The court, without a bit of snark, noted that the “skirts requirement in this case is not consistent with community norms.”  The court continued:

Women (and girls) have, for at least several decades, routinely worn both pants and skirts in various settings, including professional settings and school settings. Females have been allowed to wear trousers or pants in all but the most formal or conservative settings since the 1970s.

Some of you may be wondering: does it make a difference that this is a charter school?  Charters are schools of choice. No one is forced to attend.  Presumably the parents knew about the dress code and chose to enroll their children there.  This issue did come up in an earlier ruling in the same case.  The court dismissed the argument, noting that the charter school’s attorneys “cite no law to support this waiver argument and do not dispute that charter schools are statutorily-defined public schools.” 

Reading this case reminded me of the stories I heard at the memorial service for Dr. Joe Parks, the first Executive Director of Region 13.  Dr. Parks was loved and respected by those who worked for him, including me.  In many ways he was a man ahead of his time.  At the memorial service I heard some of the women who worked at Region 13 in the early days—late 1960s and early 1970s—as they recalled screwing up their courage to ask the boss if he would permit the women to wear pants to work. His response: “I’ve got more important things to do here than to tell you girls what to wear to work.”

Even though they were referred to as “you girls” they counted it as a victory.   But as this case illustrates, the war is not yet over.  The case is Peltier v. Charter Day School, Inc., decided by the federal district court for the Eastern District of North Carolina on March 28, 2019.  The earlier ruling was on March 30, 2017 and can be found at 2017 WL 1194460.

DAWG BONE: THE COURT DID NOT SKIRT THE ISSUE.

Tomorrow: Toolbox Tuesday!!

Yesterday we told you about Parent v. Alief ISD and the district’s efforts to get the case tossed out based on lack of jurisdiction. The district’s first argument was that the Petition for Review was filed too late. That didn’t work.

But the second argument did.  AISD argued that the parent had not properly invoked the Commissioner’s jurisdiction because the parent had not alleged a violation of the school laws of Texas.  The parent alleged that Alief violated T.E.C. 4.001 and 4.002, which set out in broad language the “Public Education Mission and Objectives and the Public Education Academic Goals.” The Commissioner said that was not good enough to invoke his jurisdiction.  Key Quote:

Petitioner wants the same thing for her daughters that every parent wants for their children. However, Sections 4.001 and 4.002 of the Texas Education Code are aspirational for Respondent and for all school districts in Texas.  These sections do not set forth a cognizable cause of action enforceable by the Commissioner. A school district can violate these sections only by setting objectives that are contrary to those established by the Texas Education Code.  Petitioner does not allege that Respondent has done so.

So the case was dismissed.  It’s Parent v. Alief ISD, Docket No. 002-R10-09-2018, decided by Commissioner Morath on January 24, 2019.

DAWG BONE: SURELY NOBODY IS OPPOSED TO THOSE ASPIRATIONAL GOALS.

Enjoy the weekend, Readers!

The board of trustees in Alief ISD denied the parent’s grievance, and the administration sent notice of this to the parent by certified mail, return receipt requested.  The letter was mailed on June 29, 2018.  The parent never picked it up.  The parent later contacted the school to inquire about the board’s decision. The following day, (August 8, 2018) the parent received a copy of the decision.

Quiz: the parent has 45 days to appeal to T.E.A.  When do those 45 days begin? 

A. June 29: the date the certified mail was mailed.
B. On the date the certified mail was delivered to the parent’s address.
C. August 8: the date the parent received the board’s decision.

The Commissioner ruled that the answer is C.  The decision illustrates the risks of relying exclusively on certified mail.  Key Quotes:

Notice served by certified mail and returned “unclaimed” does not provide the required notice.

While the Commissioner has found that the refusal to accept certified mail constitutes constructive service, the Commissioner has also noted the distinction between refusing notice and neglecting to pick up one’s mail.   

So there seem to be three kinds of certified mail: 1) those that are picked up; 2) those that are refused; and 3) those that are neglected.  In this case, it looked like neglect.  Therefore the timeline did not start when the school thought it started. The parent’s Petition for Review was filed in a timely fashion, within 45 days after August 8^th which was the date the parent actually got the decision. 

This reminded me of my early days as a lawyer.  The firm I worked for represented some small businesses and we did some collection work for them. This would begin with a “nastygram” from me, demanding payment within the next two weeks, and threatening legal action if payment was not received. I remember that my standard letter included this:

This letter is being sent by certified as well as regular mail to ensure its receipt by you. 

We sorta figured that the people we were writing to might not pick up the certified mail.

In the Alief case, the parent persuaded the Commissioner that the Petition was filed on time. But there was another problem. We’ll tell you about that tomorrow.

The case of Parent v. Alief ISD was decided by the Commissioner on January 24, 2019.  It’s Docket No. 002-R10-09-2018. 

DAWG BONE:  MIGHT BE WISE NOT TO RELY ON CERTIFIED MAIL ALONE.

Tomorrow: You can get your case heard by the Commissioner if you allege a violation of “the school laws” of Texas….but only some of the “school laws” of Texas.

SB 1989 is a bill worth watching.  It would do three important things:

• Significantly change our laws pertaining to the use of physical restraint and “time out.”
• Repeal the statute that authorizes the use of corporal punishment, and the parental “opt out.”
• Repeal the statute that allows educators to use non-deadly force as appropriate in dealing with disruptive students, and the immunity from discipline that goes with it. 

Let’s focus for today on that last point.  Currently, Texas Penal Code 9.62 allows educators to use non-deadly force with students “when and to the degree the actor reasonably believes the force is necessary to further the special purpose of the group or to maintain discipline in a group.”  Another statute—T.E.C. 22.0512—protects teachers from disciplinary action based on the teacher’s use of force as authorized by the Penal Code provision.  So if a teacher uses physical force with a student that meets the standards of Penal Code 9.62, the teacher cannot be nonrenewed or terminated based on that use of force.

This Senate Bill, if enacted, would repeal the Penal Code provision and replace it with a new Subchapter J in Chapter 37. That subchapter (Use of Restraint, Seclusion and Time-Out) provides much less flexible standards governing the use of physical force.  

I don’t think teachers are going to like this.  Assistant principals will not be crazy about it either.  Let’s keep an eye on it.

DAWG BONE: PROTECTION FROM EMPLOYMENT ACTION BASED ON USE OF FORCE IS ONE OF THE FEW RIGHTS OUR NON-UNIONIZED TEACHERS HAVE.  THIS BILL PUTS THAT AT RISK.

Tomorrow: The risks of relying on certified mail.

Tuesdays here at Daily Dawg HQ are dedicated to The Toolbox—our firm’s all day training program dealing with the discipline of students with disabilities. Today we review a decision from the 9^th Circuit that upheld the expulsion of a student for creating a “hit list.”  First, I’m going to tell you how the court ruled in this case. Then we will consider: what if the student had been identified as a student with a disability?

The boy’s mother discovered the hit list while cleaning up the teenager’s room.  The list was in his journal and read: “I am God, and All These People Must Die.” There were 22 students on the list and one former employee. The student (soon to be known as “the Plaintiff”) created this list on May 25, 2014 and his mom discovered it more than three months later.   The mom told her therapist about it. The therapist thought that she was required to inform the police, so she did. The cops told the school.  State law required the school to notify the 23 people on the list that they had been named on a hit list.

So the message went from the mom to the therapist to the cops to the school to the 23 people on the list.  That’s when it hit the fan.  The boy’s picture was promptly available on social media, even though the notices did not identify him.  The media was all over the story. Parents demanded to know more, and some pulled their kids out of the school.

Based on all of this, the school district expelled the boy for one year, offering online courses, tutoring and courses at a community college. However, the suit alleged that the school failed to implement these plans faithfully.

The parents sued on behalf of their son, alleging that he had been deprived of due process and punished for the exercise of off-campus free speech.  The court ruled in favor of the school district on all claims.

The most interesting issue was about free speech. Keep in mind that the student never communicated his threatening message to anyone. He claimed that he used his journal to vent.  The police never charged him with a crime, even though they investigated thoroughly and seized weapons from the home.  So consider: what is the basis for the expulsion? The student did not commit an act of violence. Nor did he communicate a threat to do so. A threat is not a threat until it is communicated to someone.   This student did not do that.  He thought about it and wrote about it in his private journal that he shared with no one.  Had his mom not inspected his journal no one would have known.  Nevertheless, the school charged him with making a “threat of violence” that caused a “significant disruption to the school environment.”

The 9^th Circuit concluded that the school had not violated the First Amendment:

We reaffirm our holding in Wynar [an earlier 9^th Circuit decision] that regardless of the speaker’s intent or how speech comes to a school district’s attention, a school district may take disciplinary action in response to off-campus speech when it reasonably determines that it faces an identifiable and credible threat of school violence.

Given all of the circumstances in this case, the court held that the school was facing an “identifiable and credible threat.” Thus the expulsion was upheld. 

But let’s consider how the analysis would have changed if the student had been in the special education program.  Let’s consider what “tools” would be available. 

• The school could not employ Tool #5—a Special Circumstances Removal—because the student did not possess a weapon at school or a school function. 
• The school could use Tool #6—Disciplinary Removal—but only if the ARD Committee concluded that the behavior of the student was not a manifestation of his disability.  If the parent disagreed with the manifestation determination, the parent could request a due process hearing. 
• The school could use Tool #10—Calling in Law Enforcement, but that won’t necessarily lead to any change in the student’s experience at school. In this case, for example, law enforcement was involved but decided not to charge the student with a crime.
• The school would have to offer a better set of services than this kid apparently got.  Even if Tool #6 was used and the expulsion was properly done, the school would still have a duty to provide a set of services that would enable the student to “progress toward meeting the goals set out” in his IEP.

This is the kind of analysis we do in the Toolbox Training. It’s mainly aimed at campus administrators and special education staff. If interested, let me hear from you!

This case is McNeil v. Sherwood School District 88J, decided by the 9^th Circuit on March 14, 2019.  We found it at 2019 WL 1187223.

DAWG BONE: IT’S MORE COMPLICATED IF THEY ARE IN SPECIAL ED.  YOU KNEW THAT ALREADY, DIDN’T YOU?

Tomorrow: a bill worth watching.

I write these Daily Dawgs well in advance of the day you read them….so as I write this I don’t know if Texas Tech is playing for the National Championship tonight or not. The Red Raiders face Michigan State on Saturday, and that one could go either way. I’m sure the smackdown the Techsters put on Michigan got the attention of the Spartans, so they will not take Tech lightly.  Here’s hoping TTech goes all the way. 

What I know for sure is that the Amarillo Sod Poodles are making their home debut in the Texas League tonight—how cool is that!  Great to see AA Baseball return to Amarillo. 

I will not be able to attend that game tonight, but I am headed to the Panhandle today to surprise the winner of this year’s Frank Kemerer Award. This award recognizes an outstanding high school social studies teacher, and this year, for the first time, the winner is from the Panhandle.  But I am sworn to secrecy until this afternoon when I bop into the winner’s classroom with the surprise good news.  But I can tell you I’m headed to Amarillo, and then….somewhere.

So there is a lot going on today in the Panhandle and High Plains.  Meanwhile, let’s focus our attention on a district in the Rio Grande Valley where the teachers complained of too much paperwork. Can you imagine? 

It’s common knowledge that teachers are drowning in paperwork. That’s why the legislature passed the Paperwork Reduction Act, T.E.C. 11.164.  But I wonder how much reduction has happened.  The statute lists ten types of reports that teachers might be required to prepare, including “any information specifically required by law, rule, or regulation.”  That’s pretty broad. 

One of the ten required reports involves lesson plans:

a unit or weekly lesson plan that outlines in a brief and general manner, the information to be presented during each period at the secondary level or in each subject or topic at the elementary level.  T.E.C. 11.164(a)(6). 

A group of teachers from a middle school in Edinburg CISD complained that the lesson plans they were required to complete violated this law.  The principal at Harwell Middle School required teachers to submit lesson plans using a template entitled the “Lion Lesson Plan” which included five components: TEKS, Content Objective, Differentiation, Technology and Activity/Assessment.  The teachers filed a grievance over this and carried it to T.E.A.

In his decision, the Commissioner broke down the Lion Lesson Plan into its component parts. As to three of those components (TEKS, Content Objective, and Technology) the Commissioner cited a Court of Appeals decision that held that such items were properly included in the required lesson plan.  See Ysleta ISD v. Porter, 2015 WL 1735542 (Tex. App.—Corpus Christi, 2015). 

So it came down to “Differentiation” and “Activity/Assessment.”  The Commissioner was OK with the requirement that teachers explain how they would “differentiate” instruction for students with special needs, English Language Learners and the gifted. The Commissioner noted that the Lion Lesson Plan “requires only a brief, general description of how this is to be accomplished.”  Thus including this as a required part of the weekly lesson plan did not violate the Paperwork Reduction Act.

Neither did the requirement to include “Activity/Assessment.” Here, the principal’s testimony was important. She testified that the Lion Lesson Plan template helped her ensure that classroom activities are related to expected outcomes.  The Commissioner noted that the template did not require that there be an “assessment” for every lesson, but only that when there was an assessment it should be described.  The Commissioner concluded that:

Indicating the type of assessment to be presented in the lesson—a quiz, test, project, presentation, etc.—takes no more than a few words.  This complies with the statutory requirement that lesson plans are to be an outline of the information to be presented in a brief and general manner.

The teachers made one more argument: that the Lion Lesson Plan was redundant. The district already provided each teacher with a tool known as the I-Curriculum platform which included lesson plans for use by the teachers. The Act prohibits “redundant requests” for information from teachers. But the Commissioner held that “the Act does not prohibit teacher preparation of information that already exists; but rather, the Act prohibits ‘redundant requests for information.”  For example, a principal could not require weekly lesson plans and then daily plans that require the same information. 

The Commissioner upheld the principal’s requirement. The Lion Lesson Plan does not violate the Paperwork Reduction Act. The case is Soto v. Edinburg CISD, decided by the Commissioner on January 24, 2019, Docket No. 062-R10-08-2018.

DAWG BONE: LET THE LION ROAR.

Tomorrow: Toolbox Tuesday looks at a “hit list” case.

I’ve been a licensed attorney for over 43 years and in that time I’ve discovered only one rule of law that has zero exceptions. It is:

ANYONE CAN SUE ANYONE OVER ANYTHING FOR ANY AMOUNT AT ANY TIME.

The latest illustration of this is Twohig v. God.  The plaintiff, Joshua Twohig, was an inmate in the Harris County Jail who alleged in this suit that God violated his civil rights and should be held accountable.  The suit was brought pursuant to 42 U.S.C. Section 1983 which makes government officials liable for depriving people of their rights under federal law. Section 1983 is often used in lawsuits against public school districts and school officials.

That’s the rub.  Section 1983 is only available when the suit is against a person acting “under color of law.”  A 1983 suit can only proceed against a “state actor.” The judge noted:

Twohig does not allege any facts showing that God is a state actor for purposes of a claim under Section 1983 or that God is otherwise responsible for violating his civil rights.  Under these circumstances, Twohig fails to state a claim for which relief can be granted.

So the case was dismissed, which is disappointing. I’d be curious to see if God would have proceeded “pro se” or would hire a lawyer. If so, who?  What kind of fee arrangement could be worked out with God?  Unfortunately, we will never know.

The case is Twohig v. God, decided by the federal court for the Southern District of Texas on November 15, 2018.  Thanks to BLAKE HENSHAW of our firm’s Houston office for uncovering this gem. 

DAWG BONE: MR. TWOHIG WILL HAVE SOME QUESTIONS TO ANSWER WHEN (IF) HE GETS TO THE PEARLY GATES.

See you next week!

A federal court has dismissed the Title IX student-on-student sexual harassment case that was brought against Carthage ISD.  Last November the court dismissed all of the individual defendants from the case, but kept the case against the district alive based on allegations that a football player secretly shot a video of a girl undressing which was widely shared by students and even some staff members.  The suit particularly targeted the football team, alleging that there was a culture in the district that valued gridiron success more than student safety.  Now, however, the court has dismissed that claim as well. 

The case illustrates the big difference between a Motion to Dismiss, which is based on the allegations in the suit vs. a Motion for Summary Judgment, which is based on the evidence.  The November ruling was based on the Motion to Dismiss.  In ruling on such a Motion, the court is required to err on the side of caution.  Cases should not be dismissed unless it is obvious from the get-go that they lack merit. So the court is required to assume that everything the plaintiff alleges is true, and to give the plaintiff the benefit of every inference that can be drawn from those allegations.  The Motion for Summary Judgment, however, is based on evidence gathered through depositions and other methods of pretrial discovery.  

In this case there was a yawning gap between the allegations and the evidence.  In the November ruling the court cited only the allegations made by the plaintiff.  In the more recent ruling, the court relied on depositions from the plaintiff student, her mother, the principal, the football coach and the chief of police. The court also cited affidavits from the superintendent, principal and coach.  The allegations painted a negative picture of the district, but the evidence told another story. 

It’s true that a boy secretly recorded a girl changing clothes. But the court concluded that the evidence showed that the district did not have actual knowledge of any ongoing harassment of the student:

Even more troubling, Plaintiff has presented no evidence from a witness who personally viewed the video on campus.  Nor has Plaintiff presented any evidence from other parents of students at Carthage High school who may have heard about the video.

That would have been enough for the court to dismiss the Title IX claim against the district, but the court went on to hold that the evidence also failed to show any “deliberate indifference” on the part of the district:

Here, Principal Amy promptly conducted an investigation after he was first made aware of the video. He immediately notified Officer Hardy to make him aware of the situation.  He then met with Coach Surratt, and together they interviewed [the student who took the video] and searched his cell phone for the video.  [Footnote: importantly, the video was not found on [the student’s] cell phone.]  Principal Amy also interviewed the two students who had reportedly seen the video. He called [the plaintiff] into his office while Officer Hardy was present and had her give a written statement. Without any reports of continuous on-campus harassment or any indication thereof, Principal Amy waited for the authorities to complete their investigation. Even though no formal charges were brought against [the boy who shot the video] the school still punished him under its extra-curricular policies. [Footnote: he was required to run 20 miles and sit out one baseball game.]  CISD also held an assembly for all high school students on the dangers of photos and the internet.

Does that sound like “deliberate indifference” to you?  I didn’t think so. The court didn’t think so either.

The court made short shrift of the argument that Carthage valued football more than student safety and gender equity.  Again, the court noted that the evidence simply fell short.

Kudos to Carthage ISD. The case is Harvey v. Carthage ISD, decided by the federal court for the Eastern District of Texas on March 7, 2019. We found it at 2019 WL 1083782.

DAWG BONE: YOU WIN WITH EVIDENCE NOT ALLEGATIONS 

Tomorrow: Can you sue God?

Our firm is offering an audioconference next week that will be of particular interest to special educators.  The title is:

THE WISE ONE BUILT A HOUSE ON ROCK: HOW FIRM IS YOUR EVALUATION FOUNDATION?

Decisions about special education are defensible only if they are based on a solid foundation.  When you determine eligibility, develop an IEP, decide on placement or make a manifestation determination the quality of your decision is dependent on the quality of your “evaluation foundation.”

Attorneys Nona Matthews and Jan Watson bring a wealth of experience and practical know-how to this topic.  Before opening our Irving office, Nona was a special education teacher.  Before joining our firm, Jan worked as a special education teacher and educational diagnostician.  In this audioconference, Nona and Jan will provide practical suggestions for solidifying your evaluation foundation. 

This audioconference is scheduled for April 9, and will run for about 90 minutes, starting at 10:00a.m.  This is an excellent and affordable way to provide outstanding training for your staff. Sign up at www.walshgallegos.com. 

DAWG BONE:
BUILD ON ROCK
NOT ON SAND. 
WE CAN HELP.
ASK NONA AND JAN.

Tomorrow: Update on the suit against Carthage ISD….

Tool #2 in our Toolbox involves an Educational Change of Placement With Parental Agreement. Now that sounds pretty simple. If the school proposes a change of placement and the parent agrees, you simply have an ARD meeting, fill out the paperwork, and sing Kumbaya.  But when the change is prompted by student misconduct, it’s particularly important to make sure that parent agreement is voluntary, informed and genuine. 

I bumped into an obscure matter from Ohio that nicely illustrates the concern.  After many disciplinary problems, the director of the STEM School met with the mom on the first day after the winter break—January 3, 2018. The director told the mom that her boy “needed to be in a different placement.” The mom later alleged that the director simply told her to sign off on the change.  Which she did.

Consent?  No. The Ohio State Educational Agency concluded that this was not the kind of well informed, voluntary consent the law requires.  The school did not give advance notice that it wanted to discuss a change of placement, and did not offer any alternatives. There was no IEP Team meeting and the documentation was lacking.

School officials should always keep in mind that they often deal with parents who do not understand the special education process, their rights as parents, or even the jargon heavy vocabulary we so often employ. That’s why we emphasize that parental agreement to a change of placement needs to be authentic. 

Tool #2 is just one of ten “tools” we offer in our all-day Toolbox Training. If interested, let me hear from you. 

DAWG BONE: MAKE SURE THAT PARENTAL AGREEMENT IS INFORMED AND FREELY GIVEN.

Tomorrow: An audioconference you don’t want to miss.