Mr. Rodriguez thought that the district chose not to renew his probationary contract because of his disability.  The first year teacher had a stroke on January 22, 2016.  He did not return to work that semester and on May 17^th was told that his services would no longer be needed after the expiration of his one year contract.  As usual with the termination of probationary contracts, the district offered no explanation.

Mr. Rodriguez thought he knew why this happened: obviously, it was his disability.  Isn’t the district supposed to offer some sort of reasonable accommodation?  After all, nothing else happened between the date of the stroke and the notice of termination. 

Unfortunately for Mr. Rodriguez, soon to be known as “the Plaintiff,” something else did happen, but it happened before the stroke.  Some students had complained about Mr. Rodriguez on January 6^th.  One girl alleged that he paid her “unwanted attention” and hugged her in a way that made her uncomfortable.  Other students confirmed seeing some inappropriate interactions.

The principal wrote all this up in a memo to the superintendent dated January 12^th. In the memo, the principal recommended immediate termination of the teacher’s contract.  The memo further stated that the teacher had been put on suspension with pay.

Notice that all of this happened prior to the stroke.  So while Mr. Rodriguez may have been correct in saying that nothing significant happened after his stroke, he failed to mention some very important things that happened before the stroke. 

Here’s hoping that Mr. Rodriguez has made a full recovery. But his suit against the district was not successful. Because the district produced solid documentary evidence of a legitimate reason to terminate a probationary contract, and Mr. R did not effectively rebut it, the court held that the district was entitled to a judgment in its favor.

It’s Santa Rosa ISD v. Rodriguez, decided by the Court of Appeals for Corpus Christi-Edinburg on December 6, 2018. 

DAWG BONE: DOCUMENTATION IS IMPORTANT.  I BET YOU’VE HEARD THE LAWYERS MENTION THAT A TIME OR TWO.

Tomorrow: Toolbox Tuesday!!

“Subject to assignment and reassignment.”  It says that in your contract, right?  It said that in Reynaldo Ramirez’s contract when he served as Athletic Director at Rio Grande City CISD.  However, his contract did not employ him as A.D.  That was his assignment.  The contract called him a “Certified Professional Administrator.”  Then, prior to the 2017-18 school year, the district reassigned Mr. Ramirez to Attendance and Adjudication Administrator. 

Is that kosher?  The Rio Grande City CISD board said that it was, and now Commissioner Morath has upheld that decision.  The legal issue here was “same professional capacity.”  Superintendents can move pieces around on the chess board so long as they keep employees in the “same professional capacity.” 

The Commissioner cited earlier decisions in which the key factors were identified: authority, duties and salary.  With that in mind, the Commissioner provided this analysis:

Both the Athletic Director and the Attendance and Adjudication Administrator positions are administrative positions with district-wide authority.  Both positions require educator certification.  Both positions involve working with campus personnel, parents, and students.  Both positions involve interpreting, analyzing and applying relevant law and policy.  Both positions involve directing and training staff.  Both positions have similar levels of authority and appear on the third level of the organizational chart.  Petitioner’s salary was the same in both positions.

Thus based on “authority, duties and salary” these two positions were close enough that they were within the “same professional capacity.”  Mr. Ramirez lost his appeal.

But there are a few factors the Commissioner did not discuss:  prestige, status, pizazz, visibility. In a word: fun!  Mr. Ramirez’s lawyer argued this point, asking the Commissioner to “take official notice of the importance of athletic programs in Texas school districts.”  The response to that bordered on snarky:

The Commissioner also notes the importance of attendance to Texas school districts.

Is that a suggestion that attending school is just as important as football? 

I don’t think anyone ever grew up wanting to be “Attendance and Adjudication Administrator.”  How much fun would that be?  It just does not have the pizazz, status, prestige, or visibility of the A.D. job.  No sex appeal.  But none of that matters in the “same professional capacity” analysis.

The case of Ramirez v. Rio Grande City CISD was decided by the Commissioner on November 1, 2018.  It’s Docket No. 041-R3-03-2018.

DAWG BONE: SAME PROFESSIONAL CAPACITY IS ALL ABOUT AUTHORITY, DUTIES AND SALARY. 

We’ll be back next week!

Dear Dawg: Snort here.  Rip Snort. Intrepid Reporter and Friend of the Truth.  Dawg, we have uncovered a shocking scandal right here in our local high school. Students are being pressured to convert to Islam. In fact, they are being required to profess belief in Islamic tenets right in the middle of the school day! Due to an anonymous but unimpeachable source, your Intrepid Reporter has obtained a copy of a school assignment in which students were required to profess that:

“There is no god but Allah, and Muhammad is his messenger.”

In America. This is happening in America. Children, driven by our compulsory attendance laws, a captive audience, away from their parents, being required by government paid teachers to say such things.   Thought you ought to know!  SNORT.

DEAR SNORT: Settle down, old friend.  There is a bit more to the story.  That school assignment you’ve got was part of a five day study of “The Muslim World,” part of the high school world history class.  The curriculum called for study of “formation of Middle Eastern empires including the basic concepts of the Islamic faith and how it along with politics, culture, economics and geography contributed to the development of those empires.”  Thus it is not surprising that the teacher introduced the students to the Five Pillars of Islam, and the common Islamic profession of faith in Allah and his messenger, Muhammad.

The matter has already been considered by the 4^th Circuit.  A student, supported by the Thomas More Law Center, filed suit, claiming that the school was pushing Islam as the favored religion. 

Nope.  The court had the good sense to view this particular assignment in context, noting that “academic freedom would not long survive in an environment in which courts micromanage school curricula and parse singular statements made by teachers.”

You are not well educated in the 21^st Century if you don’t know a few things about all of the world’s major religions.  The students were learning about Islam. No one was pressuring them to accept its teachings.  That’s a fundamental difference that the Thomas More Law Center does not seem to understand.

Sorry, Snort. This is not a big story. 

The case is Wood v. Arnold, decided by the 4^th Circuit Court of Appeals on February 11, 2018.  We found it at 2019 WL 507543.

DAWG BONE: TEACHING ABOUT ISLAM IS NOT PROMOTING ISLAM.

Tomorrow:  He used to be the A.D.

Sometimes you can tell where the court is headed by the opening sentence of the opinion.  This one is a good example:

This case arises out of Chicago Public School Security Guard Divelle Yarbrough’s decision to handcuff a compliant, six-year-old special education student because she allegedly took candy from a teacher, purportedly to teach the child a lesson—a decision made by Yarbrough without parental consent and despite the fact that the child presented no risk of flight or harm to herself or others.

Oh my. 

The court held that this was excessive force and an unreasonable seizure as a matter of law. The law on this was “clearly established” and so the officer was not entitled to qualified immunity, and faces potential personal liability.  As to the liability of the school district, the court held that there were too many factual issues to be resolved. Thus the court denied Motions for Summary Judgment filed by both sides. 

The case is Wordlow v. Chicago Board of Education, decided by the federal court for the Northern Division of Illinois on November 26, 2018. We found it at 73 IDELR 117.

DAWG BONE: NOT A GOOD IDEA TO USE HANDCUFFS AS A “TEACHING MOMENT” ON A COMPLIANT AND TINY CHILD.

Tomorrow: The return of Intrepid Reporter Rip Snort.

In April, 2017, an ARD Committee in Conroe ISD concluded that the student’s conduct was not a manifestation of his disability because it was impulsive. In October of the same year the ARDC had to consider a new incident of misconduct. Again, the ARDC concluded that the student’s behavior was not a manifestation of his disability.  Why?  Because it was not impulsive.

I am reminded of the famous words of Ricky Ricardo to Lucy:  “Lucy….you got some ‘splainin’ to do.”  The district ‘splained it well enough to satisfy the hearing officer and the federal court.  In the Toolbox Training that our firm provides we talk about the role of the manifestation determination review (MDR). So let’s review this recent decision.

You can understand the parents making an issue of this. How can you have it both ways?  How can you say that the boy’s impulsive behavior is not a manifestation of his disability, and then, six months later, say that his behavior was not a manifestation because it was not impulsive?

Both the hearing officer and the court focused primarily on the October ARD meeting.  The parents had challenged the manifestation from April, but that matter had been settled. So the main focus was on the October decision. The district created a solid record to show that it considered all of the relevant information and its decision was supported by staff who knew the student well.  The incident under consideration was possession of stun guns and a controlled substance. The record showed that the student knew that he was not supposed to have these things at school, and planned carefully to avoid getting caught. As usual when the student is charged with possession of an improper item at school the “impulsivity” argument did not work. 

The parents also argued that the MDR had been predetermined.  This was largely based on the fact that the diagnostician projected a draft of the MDR document on a screen for all to see at the beginning of the meeting.  The draft document was already filled out, indicating the ARDC’s conclusion that there was no manifestation. 

“Lucy…..”  Once again, the district ‘splained this problem away.  All of the school staff testified that they understood this to be only a draft to get the conversation started. And there was a good conversation, including a thorough review of records.  The parents’ argument was hurt by the fact that the parent was given the opportunity to speak up at the meeting, but declined to do so. Key Quotes:

The Committee asked [the dad] for comments and opinions, but he declined to provide additional information. 

At the meeting, the District representatives asked [the dad] opinion on the manifestation link.  [The dad] did not ask any questions or provide additional information on the implementation of [the student’s] IEP. 

[The plaintiff] offers no reason to believe that the School District “would not have listened to, and considered” [the dad’s] position at the MDR meeting.  The record evidence shows that the ARD Committee considered the relevant information before it decided to adopt the draft. Without more, [the student] fails to show that the School District violated the IDEA by preparing a draft decision before the MDR meeting.

The case is M.V. v. Conroe ISD, decided by the federal court for the Southern District of Texas on January 15, 2019. We found it at 2019 WL 193923.

DAWG BONE: HERE’S ANOTHER NEWSWORTHY QUOTE FROM THE CASE: “ACCORDING TO DR. JENSEN, IT IS COMMON FOR ADOLESCENTS TO MAKE POOR CHOICES.”  BREAKING NEWS!!

Tomorrow: Cuffing a six-year old.

The Commissioner has adopted new rules pertaining to video surveillance in special education classrooms.  The rules went into effect January 31, 2019, and require some changes to your operating guidelines.  At our law firm we have revised our product Operating Guidelines for Video Surveillance to reflect the new rules. 

The Walsh Gallegos Operating Guidelines incorporate the statutory and regulatory legal requirements set forth in SB 1398 and the Commissioner’s Rules and provide additional guidance regarding the handling of requests for the installation of video surveillance cameras in a classroom, the District’s required responses, and guidance on recorded incidents.

The updated Operating Guidelines are now available for purchase.  Many districts have purchased an earlier version of the Operating Guidelines, and can upgrade to the new version at a discounted price of $75.  If your district has not purchased the Operating Guidelines before, the cost is $250 for our retainer clients. To order a copy, just email info@wabsa.com. 

DAWG BONE: CAN’T OPERATE WELL WITHOUT GUIDELINES.

Tomorrow:  Toolbox Tuesday!!

Welcome to March!  It’s a month of bluebonnets, meaningful basketball, spring break and St. Patrick’s Day.  I think we all know that March is far superior to February, so let’s all be grateful that the February grind is over for another year.

We open the month with a case that illustrates that the deadlines for the appeal of a nonrenewal of contract are serious business.  Citing the “unforgiving statutory timelines” the Commissioner dismissed a teacher’s appeal because his lawyer filed his brief too late. 

The Commissioner has 50 days to issue a decision in a case appealing a nonrenewal of contract.  Those 50 days begin to run when the teacher files the Petition for Review.  If the Commissioner does not get his decision issued in 50 days, the school district automatically wins. It says that point blank at T.E.C. 21.304(b).  That 50-day deadline cannot be extended, even if all parties would like to push the deadline back.  Because of these tight timelines the Agency issues a “briefing schedule” to both parties, and, as this case informs us, that briefing schedule is not to be trifled with.   

The teacher’s lawyer was told to submit his brief by December 6, 2018. He didn’t do that.  First he attempted to get all of the timelines moved back, including the Commissioner’s 50-day deadline. The Commissioner denied that request because he has to. It’s an “unforgiving” statutory deadline.

So then the teacher’s lawyer submitted the brief three days late, with a footnote asking that the brief be accepted for filing. It wasn’t.  The Commissioner cited three reasons: 1) the request to accept the brief late was not made by motion; 2) it was not accompanied by a statement of good cause for the late filing; and 3) it did not include a “certificate of conference” indicating that the lawyers had talked about this.

If the teacher’s lawyer fails to file the brief on time, the teacher has failed to “exhaust administrative remedies.” That means the Commissioner does not have jurisdiction of the case.  It gets tossed out.

That’s what happened in Wolber v. Round Rock ISD, decided by the Commissioner on December 21, 2018. It’s Docket No. 006-R1-11-2018. 

DAWG BONE: MAY YOUR SIGNIFICANT OTHER BE MORE FORGIVING THAN T.E.C. 21.304(b).

See you next week!

The Texas Education Code tells us that if both districts involved in a detachment/annexation petition turn it down, the matter cannot be appealed to T.E.A.  Now we know that there is an exception to that rule.  If the person seeking detachment/annexation did not get a “fair hearing” before the local school boards, she can appeal to T.E.A.

Crystal Harris, the Petitioner, wanted out of Rio Vista ISD and into Grandview ISD. She filed for a detachment of her property from Rio Vista with attachment to Grandview. Both boards considered the matter. Both conducted public hearings, as required by the statute.  Both adopted resolutions explaining their decision.  Both boards rejected the petition.

That’s supposed to be the end of it.  When Ms. Harris appealed to T.E.A., the districts cited the Education Code and asked the Commissioner to toss the appeal out.  The Commissioner did not do that. Instead, he ruled that the local hearings did not comport with the law, and therefore, did not provide the petitioner with the “fair hearing” to which she was entitled.  The Commissioner did not approve the detachment and annexation, but he sent the case back to the two districts with orders that they were to conduct a proper hearing.  Key Quote:

Although the proper remedy for an unfair hearing is a fair hearing, a board may not revisit a valid vote on a detachment and annexation.  However, because Respondents’ initial resolutions are invalid due to improper findings, a second hearing, vote and resolution is allowed to occur.

The problem was that the resolutions adopted at the local level, which were virtually identical, included factors that are not supposed to be considered. The Education Code calls for the boards to consider and make findings regarding four things and four things only: 1) the educational interests of the students; 2) social effects; 3) economic effects; and 4) educational effects of the proposed boundary change.

And that’s all that can be considered.  The districts goofed by considering other factors.  For example, the resolutions adopted by both boards stated that “the business, social and collegial professional relationship between [the two districts] will be adversely affected by approving the petition.”

The Commissioner found fault in the consideration of the “collegial” relationships:

Nothing in the clear language of the statute suggests that the relationship between the districts is relevant in any respect.  Further, the Texas Supreme Court guidelines for statutory interpretation are eminently clear that there is to be no ad-libbing to the words of the Legislature.

The Commissioner also cited as error the consideration of “business.” The districts argued that “business” is pretty much the same as “economic” which is the word in the statute.  The Commissioner noted that “Respondents do not cite to any dictionary or thesaurus for this definition.”  Picky. Picky. Picky.

So the lesson is pretty clear. Stick with the exact words in the statute. Don’t add. Don’t subtract. Don’t explain. Don’t get creative.  Don’t ad-lib.

One other issue came up in this case: was it OK that both districts were represented by the same law firm?  (Not Walsh Gallegos).  In an earlier D&A case the Commissioner considered this issue and found that it was permissible because there was evidence in the record that both districts gave “informed consent” to the law firm to represent both of them.  Thornwood v. Spring Branch ISD, Docket No. 002-R6-09-2015 (Comm’r Educ. 2016).  In this case there was no mention of informed consent, but the Commissioner brushed the issue off, noting that “this case can be resolved on other issues.” 

So it was. The case is Harris v. Rio Vista ISD and Grandview ISD, decided by the Commissioner on December 21, 2018.  It’s Docket No. 053-R6-05-2018.

DAWG BONE: WHEN CONSIDERING A D&A PETITION, STICK TO THE EXACT WORDS OF THE STATUTE.

Tomorrow: an unforgiving statute.

The 5^th Circuit recently decided a case in which a transgender woman was first offered a job by Phillips 66, and then had the offer snatched away from her.  Phillips changed its mind and rescinded the offer. Was that because the prospective employee was transgender?

The woman said yes but the court said no.  The court held that the woman misrepresented some important facts in her job interview.  In her interview she explained that she was seeking new employment because her current employer was proposing to move her into a new assignment that would involve too much travel. She didn’t want to do that, so she was looking for other work.

That sounded plausible to the interview committee, so Phillips 66 offered the woman a job, contingent on passing the background check. But when Phillips contacted the woman’s current employer they heard a different story.  She had been fired.  Phillips confronted the woman with this information, and she acknowledged that she had been fired. She thought it was “no big deal.”  Phillips 66 thought it was a big deal.  Offer rescinded.

Then the woman, soon to be known as “the Plaintiff,” claimed that the real reason for the rescission of the offer was her transgender status.

The Plaintiff sued the company, alleging sex discrimination in violation of Title VII.  This gave the court the opportunity to dive headfirst into the culture wars.  Is discrimination based on transgender status a form of discrimination “based on sex”?  While we’re at it, what about gay and lesbian employees?

The official holding of the court dodges all of those issues and instead rules in favor of the employer based on the simple fact that it had a legitimate, non-discriminatory reason for its decision.  All prospective employees—gay, straight, and transgender—have to tell the truth in a job interview.

So that was the ruling of the court, but the judges could not resist the temptation to weigh in on the juicier issues.  There are two “concurring” opinions, the longer of which asserts that discrimination based on sexual orientation is not the same as discrimination “based on sex” under Title VII. Judge Ho cites a 1979 5^th Circuit decision (Blum v. Gulf Oil Corp.) along those lines and asserts that it is still good law. The other concurring opinion casts doubt on that, noting that the 1979 decision was “decided decades before Lawrence v. Texas invalidated laws criminalizing same-sex sexual conduct, and we have never relied on Blum for its holding that Title VII does not cover sexual orientation discrimination.”

For those interested in the status of the law pertaining to sexual orientation, the concurring opinions are must reading.  For HR directors the case carries a simpler lesson. See today’s Dawg Bone.

The case is Wittmer v. Phillips 66 Company, decided by the 5^th Circuit on February 6, 2019. We found it at 2019 WL 458405.

DAWG BONE: WHEN BEING INTERVIEWED FOR A JOB, TELL THE TRUTH. 

Tomorrow:  A do-over on a D&A case.

A boy who was on the autism spectrum brought a knife to school in Pittsburgh, Pennsylvania on February 9, 2015.  A teacher found the knife in the pocket of his jacket after the metal detector beeped as he walked through.  The boy had used the knife at a camp with his dad the day before and forgot that it was still in his pocket.  No one in the school doubted that explanation.  Furthermore, the IEP Team concluded that his autism caused him to be forgetful about this.

You got that?  It was an accident. And it was a manifestation of his disability.  The kid had not been disciplined in his previous seven years in the district. He was not a problem child.  Surely there will be no punishment for this.

But there was, and the Pennsylvania hearing officer was OK with that.  The hearing officer pointed out that this was a “special circumstances” offense.  The school was authorized to send the student to an Interim Alternative Educational Setting for up to 45 school days even though the behavior was a manifestation of disability. That’s what the principal did.

The hearing officer pointed out that the “special circumstance” offense regarding drug possession requires proof of “knowing” possession. But possession of a weapon is a “special circumstance” offense even when it is done accidentally, with no intent or knowledge. Key Quote:

I am compelled to agree [with the district] that the fact that Student did not intend to bring the weapon to school is immaterial, because the applicable provision contains no requirement of intent.

That may be so in Pennsylvania, but not here. We have a state law that requires campus behavior coordinators to always take “intent” into account.  It’s at T.E.C. 37.001(a)(4) which requires that your Code of Conduct must call for “consideration” of four factors prior to the imposition of suspension, expulsion or DAEP removal. One of the four factors is “intent or lack of intent at the time the student engaged in the conduct.”  T.E.C. 37.001(a)(4)(B).

This Pennsylvania case is a good illustration of what we call Tool #5—Removal due to Special Circumstances.  That’s just one of the ten “tools” we talk about in the Toolbox Training. Interested?  Let me hear from you.

This obscure case is at 115 LRP 17342 and was decided by a Pennsylvania hearing officer on March 21, 2015.

DAWG BONE: IN TEXAS WE ALWAYS CONSIDER “INTENT.”

Tomorrow: was it because she is transgender?