DEAR DAWG: Snort, here. Rip Snort. Intrepid Reporter. Friend of the Truth.  Dawg, our investigative team has uncovered evidence that Lieutenant Governor Dan Patrick is not seriously hurt after his fall yesterday.  However, he is not the same person.  Something happened to the man. 

It seems that the Lite Guv was riding a bicycle in Titus County, enjoying the beauty of East Texas in the springtime, heading toward the small town of Damascus, Texas. Suddenly, he was thrown to the ground and temporarily blinded by a bright light.  Mr. Patrick later reported hearing voices, calling on him to change his ways.  Mr. Patrick believes that the voices were those of the public school teachers who taught him as he grew up.  “Why are you persecuting us” the voices said.  “Why are you not using your position of power to support public education?”

Sources tell us that Mr. Patrick is a changed man, suddenly on fire with a passion to support public education.  Patrick told one close friend “I’ve been wrong.  I need to change.  I now see that a general diffusion of knowledge is essential to the preservation of the liberties and rights of the people. I want to make sure that I do my legislative duty to make suitable provision for the support and maintenance of an efficient system of public free schools.”

Mr. Patrick will be returning to Austin today.  Watch for a fiery apostle for public education to lead the way.  SNORT.

DEAR SNORT: Thank you, Friend of the Truth. We recall hearing a similar story about someone else, but can’t remember who that was. In any event, we look forward to Dan Patrick, The New Man. 

DAWG BONE: IT HAPPENED ONCE! IT CAN HAPPEN AGAIN.

Tomorrow: Toolbox Tuesday!!

What’s with Minnesota?  Our northern friends do not allow boys to participate in competitive dance.  Have they not heard of Mikhail Baryshnikov?  Gene Kelly?  Michael Jackson?  Do we not want to encourage all of our students to express themselves in the creative arts?

Two boys took the Minnesota High School League to court over this, alleging that the League’s “girls only” policy violated Title IX and the U.S. Constitution. The 8^th Circuit held that the boys were likely to prevail in this case, and thus issued an injunction against the League. The boys can dance!

Minnesota justified its ruling by asserting that girls were the underrepresented sex in high school athletic competition. But the statistics did not bear this out. The court produced a chart showing athletic participation for five school years from 2013-2018.  In two of those years the percentage of girl athletes was higher than the percentage of girls enrolled.  The largest gap in those five years was 1.9%. This was in 2013-14 when girls were 48.7% of students, and 46.8% of athletes.  

The court acknowledged that the law sometimes permits gender-based classifications to remedy past discrimination, but only if there is still a problem. Key Quotes:

In other words, for a government actor to classify individuals based on gender for the purpose of remedying a prior lack of opportunities, the individuals must continue to lack opportunities or the classification is not constitutionally justified.

The parties agree that girls historically have been underrepresented in Minnesota high school athletics.  However, over the past five years, the representation of girls in Minnesota athletics has been almost directly proportional to the number of girls enrolled at Minnesota schools.

Chalk one up for the boys.  More importantly, chalk one up for equal opportunity to nurture and encourage the next Ginger Rogers…..right alongside the next Fred Astaire.

The case is D.M. v. Minnesota State High School League, decided by the 8^th Circuit Court of Appeals on March 6, 2019.  We found it at 2019 WL 1050420.

DAWG BONE: “THOSE WHO WERE SEEN DANCING WERE THOUGHT INSANE….BY THOSE WHO COULD NOT HEAR THE MUSIC.”  NIETZSCHE. 

Don’t be an April Fool. Check out the Daily Dawg on Monday. 

It’s inevitable that this would happen—the same campus where the service dog is required has the child with the allergy to dogs.  What do we do?  A federal court recently cited OCR guidance that basically says…do your best to accommodate both people.  The OCR guidance reads like this: 

Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom….they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.

Citing this guidance, the court held that the school’s accommodation plan for the student with an allergy to dogs was reasonable and adequate.  The school was not required to guarantee a dog-free school.  However, while the plan was good on paper, there was a problem with implementation.  The court held that there was enough evidence of the school’s failure to enforce its 504 plan to permit the case to go forward.

The case of Doe v. United States Secretary of Transportation was decided by the Southern District of New York on December 4, 2018.  We found it at 73 IDELR 152 (S.D.N.Y. 2018).

DAWG BONE: THE DAWG CAN HARDLY BE NEUTRAL ON SUCH ISSUES.

Tomorrow: Does Title IX work for the boys?

At last month’s UT School Law Conference we heard a very informative presentation from Amanda Bigbee, General Counsel at Keller ISD, about what Keller has done with its District of Innovation plan.  This DOI thing has really taken off in Texas, with over half of the districts in the state adopting a plan. However, most of those plans address only a few things, such as the starting date for school (804 districts) and teacher certification (727).  Keller’s plan goes quite a bit further.

Two specific provisions caught my attention. First, Keller obtained an exemption from the requirement that students below the third grade cannot be suspended out of school.  The Keller DOI allows for suspensions of up to three days in a row, no more than 10 total for the year. 

Second, Keller’s plan permits the district to suspend a contractual employee without pay when the action is based on an alleged violation of the Educator’s Code of Conduct. 

Exemptions like these require buy in from teachers and parents.   If your district is interested in expanding its DOI plan with these provisions or others, it would be wise to plan carefully, get buy in from stakeholders, be transparent, and go slow. 

One other idea I got from Amanda’s excellent presentation—it would be a good idea to set aside some time after the legislative session to review all of the new laws and identify those from which the district would like to seek exemption.  I’m sure my Back to School program this fall will highlight that option. 

The attorneys in our firm can help you with amendments to your DOI plan. We can help clarify what areas are available for exemption, and can help you with the process. So give us a call if we can help.

DAWG BONE: GET INNOVATIVE!

Tomorrow: Johnny has a service dog. Susie is allergic to dogs.

I’m happy to report that Toolbox 4.0 will soon debut.  As most Daily Dawg readers know, the Toolbox is a full day training program focusing on the legalities of student discipline as applied to students with disabilities. It’s a complicated subject, which is why I created the Toolbox. The goal was to provide an understandable framework and vocabulary to help school officials protect the rights of students under IDEA while maintaining safety on campus.

The tools in 4.0 are the same as the ten tools in 3.0. Neither the law nor the federal regulations have changed, so the tools remain the same. But we’ve added some new text to our Q and A, along with some new hypotheticals and newer cases that illustrate how the tools work in litigation.

I have Toolbox workshops currently booked at Decatur ISD, Ingleside ISD, Regions 6, 7 and 10.  There is room on the calendar for more, so if you are interested give me a call.   

DAWG BONE: 4.0: NEW AND IMPROVED!

Tomorrow: How innovative is your DOI plan?

I expect you’ve heard by now that the Texas Court of Criminal Appeals has struck down an important part of the Texas Open Meetings Act (TOMA).  The court held that one section of the Act was unconstitutionally vague.  Thus for now, no one can be prosecuted for knowingly conspiring to circumvent the law by meeting in numbers less than a quorum in order to secretly talk about public business. 

This is a big deal, but let’s put it in perspective. First, this is just one section of the TOMA. The rest of the law remains intact. 

Second, the section shot down by the court is one of the few parts of TOMA that applies criminal penalties.  Criminal penalties can only be imposed when the law gives fair notice to people of what kind of conduct would amount to a violation of the law.  The law has to be reasonably clear.  That’s why those speed limit signs on our highways always have a specific number.  For three years, the State of Montana’s speed limit on major highways omitted a number and only required driving at a “reasonable and prudent” speed.  Then, in 1998, the Montana Supreme Court rejected this as unconstitutionally vague.  Your definition of “reasonable and prudent” may be way different than mine. I can attest to this every time I drive I-35.  In the TOMA case, we see the same principle at work. 

Third, it’s still improper for school board members, or any other government officials, to knowingly seek to circumvent TOMA.  Public business is supposed to be discussed at a properly posted meeting open to the public.  The fact that criminal prosecution is no longer available does not change that.

Fourth, keep an eye on the legislature.  There are already several bills introduced that would restore criminal penalties.  Anything the legislature does on this will be compared to the standards set out in the court’s opinion regarding clarity vs. vagueness. So keep an eye on HB 2965, HB 3402, HB 3697, HB 3752, SB 494 and SB 1640. 

Finally, we’ve always known that this part of the law was vague.  We just didn’t know that it would be deemed so vague as to be unconstitutional. School board members have been worried about simple email communication and text messages that might get passed along from Board Member 1 to Board Member 2 and then to Board Member 3.  Is this now a “conspiracy”?  Those anxieties will ease a bit with this ruling from our state’s highest criminal court.  Nevertheless, TOMA is intact and is designed to guarantee transparency in the transaction of official business. We would all be wise to keep that in mind.

The case is State of Texas v. Doyal, decided by the Texas Court of Criminal Appeals on February 27, 2019. 

DAWG BONE: SEEKING TO CIRCUMVENT TOMA IS NO LONGER A CRIME, BUT IT AIN’T RIGHT EITHER.

Tomorrow: Toolbox Tuesday!!

Is it OK to have a transfer policy that explicitly treats students with IEPs differently from others?  According to the 7^th Circuit it is. This high level court opinion is worth some serious study by districts that accept transfer students. 

Wisconsin’s state law creates a detailed procedure to implement its “Open Enrollment” policy.  The procedure explicitly divides students into two categories and treats them differently: those with IEPs and those without.  If you do not have an IEP your transfer request will be compared to the district’s available space in your grade level. If you have an IEP, the same factor will be considered, but also this:

Whether the special education or related services described in the child’s IEP…are available in the nonresident school district.

Consider how that would work in practice. Imagine that two 4^th graders seek to transfer into the Green Bay district.  One of them has an IEP dealing with his autism.  The district has room for two 4^th graders, but it lacks the ability to provide the services described in the student’s IEP.  The general education student is accepted; the special ed kid is turned down.

Discrimination? The 7^th Circuit said no:

Differential treatment of special-needs students doesn’t make the program unlawful.  Federal law “forbids discrimination based on stereotypes about a handicap, but it does not forbid decisions based on the actual attributes of the handicap.”  Anderson v. University of Wisconsin, 841 F.2d 737, 740 (7^th Cir. 1988).  The program makes decisions based on the actual needs of disabled students, so it complies with federal law.

The plaintiffs made a second argument in this case—that acceptance of students with IEPs was required as a “reasonable accommodation” under Section 504. The court rejected that as well:

Neither the ADA nor the Rehabilitation Act [504] requires modifications that “would fundamentally alter the nature of the service, program, or activity.”  The requirement that nonresident school districts have the excess capacity to meet the needs of transferring students is a fundamental component of this program.  Demanding that nonresident school districts accept students regardless of their existing capacity to meet student needs would upend this key feature. Federal law does not require such an overhaul.

The court’s analysis is a good illustration of how our laws about disability discrimination are different from other non-discrimination laws.  There is no way that a court would approve differential treatment of students based on race or religion.  That’s because neither of those characteristics affect how the student is served. But disability does affect services.  Serving a student with a disability requires a different level of services. It usually costs more. It requires professional services and/or equipment that would not otherwise be required. Thus it is not surprising to read that 71% of Wisconsin students without IEPs were accepted for transfer, whereas only 64% of students with disabilities were. 

This case is worth a good review with your TASB policy consultant and school lawyer.  The case is P.F. v. Stanford Taylor, decided by the 7^th Circuit on January 22, 2019. We found it at 119 LRP 1475. 

DAWG BONE: SOMETIMES DIFFERENTIAL TREATMENT IS NOT THE SAME AS ILLEGAL DISCRIMINATION.

Sunday is St. Patrick’s Day!!  In order to afford this event its proper due, the Dawg takes a full week off. You should too! Call it “spring break” maybe.  See you back here on Monday, March 25. 

The teacher claims that she received a stipend of $6000 for teaching three dual credit courses last year, but is only getting $4500 this year.  The district cut her stipend by $1500 without written notice, and after the deadline for her to resign without penalty. Is that OK?

It might be.  The Commissioner said it was OK in McDaniel v. Llano ISD.  That’s because the teacher’s total compensation was not cut.  The payment for the dual credit courses came on top of her regular salary.  Apparently the district made up the $1500 difference by raising the regular salary.

The rule is that the district cannot reduce compensation for a Chapter 21 employee after the “penalty free resignation” date. But the only number that counts is the total compensation. So if the portion coming from the state goes up (let’s hope!) the portion coming from the local district might go down.  If a stipend is eliminated or reduced, but the total compensation remains at least the same, the district has complied with the law.  So if the teacher made $48,000 last year, her only guarantee is that she will make at least $48,000 this year.  How the district gets to that figure is within its discretion.

The case was decided by the Commissioner on December 21, 2018.  It’s Docket No. 054-R10-05-2018. 

DAWG BONE: IT ALL ADDS UP.

Tomorrow: Do you take transfer students?  How ‘bout those with disabilities?

USA Today reports that coaches in Kenosha, Wisconsin “honored” cheerleaders at their annual banquet by recognizing the girl with the largest breasts, the girl with the largest backside, and the skinniest girl.  When confronted about this the coaches gave the usual excuses for such inexcusable behavior.  “We’ve done this for a long time and no one has complained.”  “We were just joking.”

This stuff is not funny, and the fact that it’s been tolerated for a long time is no reason to continue to tolerate it.

Here’s the story:

https://www.usatoday.com/story/sports/highschool/2019/02/20/high-school-cheerleaders-big-booty-body-shaming-awards-aclu-involved/2931741002/

DAWG BONE: SHEESH. GLAD THIS DIDN’T HAPPEN IN TEXAS.

Tomorrow: Can the school cut my pay?

I usually start my Toolbox presentations explaining the natural tension that is built into our federal special education law.  The law requires schools to maintain safety.  It requires schools to serve students who may be dangerous.  Sometimes those two requirements are at odds with each other. 

A recent federal court case involving a charter school in New York spells out the tension nicely.  It’s a lengthy court decision including four appendices and 63 footnotes. The court noted that it reviewed over 1,000 student discipline cases.   The court held that the plaintiffs properly alleged claims that the charter school failed to provide due process, abused the “special circumstances” provision of IDEA and failed to provide adequate services in the IAES (Interim Alternative Educational Setting). Thus those claims will proceed.  The student was repeating first grade for the third time, largely due to repeated suspensions from school. 

Footnote 57 is where I found the court’s explanation of the natural tension built into the law:

….the Court recognizes the tension between the protection of [the student's] rights under the IDEA and [the school’s] interests in protecting their students from harm and themselves from related liability.

The disconnect here is between the “serious bodily injury” exception of the IDEA and the “continuing danger” exception of the 14^th Amendment.  Under the IDEA, serious bodily injury is defined very narrowly…

By contrast…..the “continuing danger” exception…is clearly a more flexible standard than that for “serious bodily injury.”

Therefore, in some circumstances, schools could be required to allow a disabled student who did not inflict “serious bodily injury,” but is a “continuing danger” to return to school, or else risk being held liable under the IDEA for improperly keeping the student out of school.  This potentially puts the school in the difficult position of weighing the safety of the student body against the monetary liability for violating the rights of a disabled student.  However, the Supreme Court has held that this tension is an intentional feature of the IDEA.

Yep.  That’s why our firm offers a full day training program that we call The Toolbox. It’s designed to empower educators to balance those two requirements properly.  We offer ten “tools,” a book to keep, some nifty laminated cards and some interesting hypotheticals to play around with.  If interested, let me hear from you.

The case is Patrick v. Success Academy Charter Schools, Inc. decided by the Eastern District of New York on December 14, 2018. We found it at 73 IDELR 146. 

DAWG BONE: THE BUILT IN TENSION WAS NO MISTAKE.  CONGRESS DID IT ON PURPOSE.

Tomorrow: Coaches acting badly. Not in Texas!!