The Toolbox is a full day training program designed to help campus administrators and special education staff serve students with disabilities safely and appropriately.  In the Toolbox Training we offer ten “tools” that the law authorizes, and we practice using them.  We talk quite a bit about the role of the ARD Committee and the process of making a manifestation determination.

One issue that comes up periodically involves the role of a campus administrator, usually an assistant principal, as the person who 1) investigates the incident; 2) provides due process to the student; 3) makes the determination that the student violated the Code of Conduct; and then 4) serves as the “administrative representative” at the ARDC meeting where the manifestation determination will be decided.  Is it OK to have one person do all of that?

It is. Of course if you have enough administrators to go around you can spread these responsibilities around. But there is no legal reason why a competent A.P. cannot do all of this.  This came up in a federal court case in Hawaii a few years ago.  The student was charged with setting off a bomb in the school bathroom, thus causing extensive damage. The vice principal investigated and found the student guilty of this offense, in part, based on the student’s confession.  The court held that the MDR team reviewed the records and had ample support for its conclusions.  The court also rejected the argument by the parent that the assistant principal should not have been involved in the manifestation determination.  Key Quotes:

The Court is also unpersuaded by Plaintiffs’ argument at the hearing that [the assistant principal] should not have led the manifestation determination meeting because he was the one who investigated the firework incident.  The Court agrees with Defendant that it made sense for [the assistant principal] to lead the meeting since he was the vice principal as well as the school official most familiar with the incident.

The case is Danny K. v. DOE State of Hawaii, 57 IDELR 185 (D.C.Ha. 2011).

DAWG BONE: A.P.s ARE LIKE SWISS ARMY KNIVES.  MANY FUNCTIONS.

 Tomorrow: It’s Halloween, right?

Your All Night Do Right Law Firm has you covered on this.  Besides knowing about student discipline, nepotism, 313 agreements, manifestation determinations and teacher nonrenewals, the lawyers in our firm are also conversant with trademarks, copyright, and other intellectual property issues. These issues have become more prominent for school districts in recent years as teacher webpages have proliferated and marketing companies have sometimes sought to use district logos to sell products.

We’re providing an audioconference on this subject next Wednesday, November 7.  Attorney Haley Turner from our Austin office will be joined by Attorney Barry Berenberg from our Albuquerque office for a lively and informative discussion, with an emphasis on practical application.  Go to our firm’s website to sign up: www.walshgallegos.com.

DAWG BONE: AUDIO CONFERENCES CONVENIENT AND INFORMATIVE!

 Tomorrow: Ever heard the expression “judge, jury and executioner”?

We now have two lawsuits brewing in the Houston area in which students allege that they were punished and harassed for refusing to stand and recite the Pledge of Allegiance.  We told you about the first case, Arceneaux v. Klein ISD on August 29 and 30.  The second case is from Cypress-Fairbanks ISD and involves a similar fact situation.

This time the student is an 18-year old student who alleges that she was temporarily expelled from Windfern High School, a school of choice within the district. The suit alleges that the principal told the student “Well you’re kicked outta here” while the secretary explained “This is not the NFL.” The suit alleges a variety of claims, including that the Texas statute that requires recitation of the Pledge is unconstitutional.

Federal rules require that when a state statute is challenged as being unconstitutional the state  Attorney General must be given notice and an opportunity to intervene in the suit. So that happened. Attorney General Paxton has intervened and will be defending the constitutionality of our state law.

Stay tuned! The Dawg will do his best to keep you up to date with these cases.  In the meantime, keep reciting the Pledge (both of them) but remember that our statute allows for a student, with parental permission, to opt out.  Both of these cases allege that the district’s written policies include the “opt out” but that the folks in the classroom don’t seem to be aware of it. So make sure everyone is aware of it!

The initial ruling in Landry v. Cypress Fairbanks ISD was issued by the federal district court for the Southern District of Texas on July 17, 2018.  We found it at 2018 WL 3436971.

DAWG BONE:  STUDENT RIGHT TO REFUSE TO SAY THE PLEDGE WAS ESTABLISHED IN 1943.  NOT A NEW THING.

It all started when the third grader put his new shoes on a chair in music class to show them off to a friend. According to the student, soon to be known as “the Plaintiff”, the music teacher went ballistic.  The lawsuit alleges that the teacher instructed the boy to “put his f****** feet down.”   Later in the class the boy put his shoes on the chair again. The teacher yelled “I f****** told you to take your feet off the chair.” Did we mention that the shoes-on-the-chair kid was in third grade?

Bad enough, but that’s not the worst:

Defendant Valdez then “picked up the chair [Plaintiff] had his feet on and slammed it down on the floor.  [He] then punched [Plaintiff] in his right shoulder three times with a closed fist.”  Defendant Valdez kicked a second student in the shin, pulled a third student to the ground by the hair, and shouted at the class “that they were ‘stupid’ and to ‘shut up,’ as well as yelled profanity at the students.

Five days later the school fired Mr. Valdez, after he acknowledged that he had “lost it” in the classroom.  His license to teach was suspended for two years and he plead guilty to three counts of battery.  Then he got sued.

Mr. Valdez tried to get the case against him dismissed, arguing that his actions may have been wrong, but they were not “unconstitutional.”  Moreover, the ex-teacher asserted that he was entitled to “qualified immunity” because the law about this sort of thing was not “clearly established.”

Nope.  None of that worked.  The court applied the “shocks the conscience” standard, meaning that Mr. Valdez would not be liable unless his alleged behavior “shocks the conscience.” The court held that it did.  The allegations in the suit were that the boy had a dislocated shoulder, torn tendons, and emotional damage.  Key Quote:

Accepting Plaintiff’s version of the events in his First Amended Complaint as true, as this Court must on a motion to dismiss, Defendant Valdez’s alleged use of force would be disproportionate to the need of maintaining order in a class of third grade children, where the only disruption involved a child who put his feet up on a chair….. A jury could interpret Defendant Valdez’s conduct in “losing it” as malice towards the students. Simply put, the Court finds that Plaintiff has succeeded in meeting his burden to allege a viable constitutional violation.”

The court also held that the ex-music teacher was not entitled to qualified immunity. The law was clearly established to the point that a teacher should have known that such improper use of force was unconstitutional. After reviewing the case law the court says that a reasonable teacher in Mr. Valdez’s situation ought to know that:

The application of intentional, excessive physical force against a student resulting in severe and continuing injuries, could rise to the level of a constitutional violation.

The case of G.V.R. v. The Espanola Public Schools was decided by the federal court for New Mexico on September 14, 2018. We found it at 2018 WL 4401724.

DAWG BONE: “LOSING IT” IS COSTLY.

 Another student refuses to stand and recite the Pledge. Another suit.

Roselee Gracia was terminated from her employment as a paraprofessional after over 20 years on the job.  The termination was based on three incidents involving the use of physical force with a  pre-k boy.  Both the school board and the Commissioner concluded that Ms. Gracia used force inappropriately in all three incidents.

The Commissioner’s decision reaffirms the strong protection that professional school employees have when using physical force with students. Section 22.0512 of the Education Code grants such employees a limited form of immunity. School districts may not terminate, nonrenew or otherwise discipline a professional employee (which includes paraprofessionals) based on the reasonable use of physical force.  Many teachers have relied on this statute to protect them from disciplinary action by the school, but in this case, the Commissioner concluded that the statute did not protect the employee because the force was “disproportionate.”

In this case, all three incidents were captured on hallway video cameras.  In all three, the Commissioner held that the use of force was “disproportionate” to the occasion.  Previous decisions by the Commissioner have given us five factors that should weigh in the equation when determining if force was “objectively reasonable.”  Disproportionality is one of the factors.

When I hear that physical force was “disproportionate” I tend to think that we are talking about strong, perhaps even violent actions.  I accidentally bump into you and you punch me in the face, breaking my nose. That would be “disproportionate.”  But this case illustrates that “disproportionate” force can arise in other situations.  Consider the first incident as described by the Commissioner:

…Petitioner was leading the children down the hallway. A little girl stopped at the water fountain and Student walked up to her and appeared to tell her to get back in line.  Petitioner approached the girl and Student, took the little girl’s hand and hit Student on the shoulder with the girl’s hand.

That could not have caused injury, and probably did not even produce pain.  But the Commissioner deemed it disproportionate:

Petitioner’s reaction, taking one student’s hand and using it to strike Student, is unnecessarily degrading and disproportionate to the offense, especially since Student was not fighting with the little girl, but rather, he was attempting to help her. Further, a teacher’s modeling of the use of physical force between students definitely sets the wrong example for the students.

The Commissioner had a similar view of the other two incidents.  None of the incidents involved serious misconduct by the student who was, after all, a pre-k child behaving like a pre-k child.  The “disproportionality” was not based on the intensity of physical force, but rather, on the comparison between the student’s behavior with the teacher’s response.

The case is Gracia v. Brownsville ISD, decided by the Commissioner on August 8, 2018. It’s Docket No. 025-R10-01-2018.

DAWG BONE: THOSE HALLWAY CAMERAS DO NOT LIE.

 Tomorrow: What happens when a teacher “loses it” in the classroom?

The Toolbox is a full day program designed to help educators use ten “tools” that are designed to comply with the law, maintain safety, and serve every student in the least restrictive environment.  Today we are going to tell you about a recent federal court decision involving the district’s effort to use what we call Tool #3—an Educational Change of Placement Without Parent Consent.

In Toolbox training we focus on students with disabilities who present challenging behaviors.  But Tool #3 comes up in other cases as well. Anytime a school district seeks a non-disciplinary change of placement over parental objection it’s a Tool #3 situation. That’s what happened in the case of A.B. v. Clear Creek ISD.

The court describes A.B. as a 10-year old, identified as having an intellectual disability and speech impairment.  For the 2015-16 and 2016-17 school years the student was placed in a mainstream classroom with in-class and resource room support.  For the 2017-18 school year the district proposed a change of placement to the “Learning to Learn” classroom, which is a more restrictive setting.  The district proposed providing all of the core academics in this setting.

The parents disagreed and sought a due process hearing.  Besides challenging the proposed placement for 2017-18, the parents also argued that the district had denied the boy a FAPE (Free Appropriate Public Education) for the previous two years.

The hearing officer issued a split decision, holding that the district did provide FAPE from 2015-2017, but that the proposed placement for 2017-18 was overly restrictive.  Both sides sought federal court review. The parents claimed victory and, therefore, attorneys’ fees. The school sought to overturn the decision about 2017-18.

The federal court completely affirmed the hearing officer’s decision, and postponed a ruling on attorneys’ fees to another day. Why did the school lose on the LRE issue?  Primarily because the evidence showed that the student was doing pretty well in his mainstream setting.  Progress reports indicated that he was on track to achieve his IEP goals. The district was very precise in how it reported progress. The court pointed out that district records showed that as of the 18^th week of school the student was already at or close to the goal for the 27^th week in Social Studies, Math and Science.  Moreover, by all accounts his behavior had improved. Key Quote:

Despite CCISD’s claims to the contrary, there is no overwhelming evidence in the record establishing that A.B. is so limited in function, or so demanding as a student, as to entirely absorb a teacher’s time and create an undue burden, especially with a paraprofessional providing in-class and resource room support.  Also, in light of A.B.’s improved behavior, he is no longer disruptive in a disciplinary sense and has shown marked improvement such that he no longer exhibits task avoidance behavior.

Tool #3 comes into play only when the student’s current placement is not successful.  There is no reason to propose a change of placement, particularly not a change to a more restrictive setting, if the current placement is successful.  In this case it was the very success of the district that undercut its effort to make a change.  Some would point out that the student was not at grade level. Here is what the court said about that:

Although A.B.’s test scores and evaluations showed academic performance below his assigned grade level, with instruction at a slower pace and with more repetition, his progress remained consistent and markedly improved in a general educational setting.

The case of A.B. v. Clear Creek ISD was decided by the federal court for the Southern District of Texas on September 28, 2018. We found it at 2018 WL 4680564.

DAWG BONE: IF IT AINT’ BROKE…..

Tomorrow: another “teacher use of force” case. This time, the teacher loses.

The Department of Education may be about to take $33,302,428 of special education funds away from the State of Texas. Yikes!  That would only make a hard job harder.  What’s this about?

One of the more obscure but important provisions in our special education statute (IDEA) is known as the Maintenance of Effort (MOE) requirement.  The feds want to be sure that states don’t take federal money and use it to replace state funding.  The same requirement applies at the local level—districts cannot take special education money from the state and use it to replace local funding.

MOE requires that states spend at least the same amount on special education students from year to year.  You can’t spend less in Year Two than you did in Year One, subject to a few narrow exceptions.  Now the feds have accused Texas of exactly that, to the tune of over $33 million. That would pay for a lot of speech therapy.

Texas does not deny that it spent less in State Fiscal Year 2012 (SFY) than in Year 2011. Nor does it deny the dollar amount.  But Texas maintains that the reduction was due to the fact that students required less expensive services. The state uses a formula to determine funding by which local districts receive more money for serving students with more intensive needs.  So Texas argues that it used the same formula and met student needs to the same degree in both years...but that the needs in Year Two were less expensive than the needs in Year One.

That argument fell flat when presented to the Department of Education which issued its decision on May 23, 2018:

The federal statute is clear and unambiguous. The plain language of the statute and the Department’s determination is affirmed.  Texas is not eligible for $33,302,428 of its IDEA Part B Section 611 grant because it failed to maintain that amount of state financial support in SFY 2012.

The decision has been appealed to the 5th Circuit which heard oral arguments on the case this month. Stay tuned.  If we lose this much federal money it’s going to only pile on to the financial problems facing our legislators in 2019.

DAWG BONE: LET’S HOPE FOR A REVERSAL AT THE 5TH CIRCUIT!

 Tomorrow: Toolbox Tuesday looks at LRE requirements.

Free speech seems to be freer than ever, no?  All of us have instant access to the entire world through social media.  So what can a school district do when a parent or non-parent citizen posts defamatory material on the web?

The starting point in thinking about that is to remember that the First Amendment protects freedom of expression in all of its ways.  We can speak. We can write. We can express an opinion symbolically (black armbands). We can post on the Internet. It’s all “expression” and thus protected from government interference.

Next: consider who the speaker is. In the context of public schools, the speakers fall into three categories: students, employees and everyone else. There are limits on student free speech, as illustrated by a string of Supreme Court cases. While attending school or school activities students cannot be vulgar, cannot promote illegal drug use, and cannot engage in bullying or other forms of expression that can reasonably be expected to cause a substantial disruption of school or to interfere with the rights of others. Also, sometimes student speech is “school sponsored” such as the student newspaper or yearbook. Schools have more control of the content of those publications.

Employee speech is restricted in the school setting as well. School employees who are “speaking as a citizen” enjoy the same constitutional protections as we all do.  So campaign for your candidate. Write a letter to the editor. Express yourself. But while on the job, employee speech is more restricted. This restriction applies to other constitutional protections as well, such as freedom of religion.  That’s why there are restrictions on teachers praying with students at school.

There are no restrictions on the constitutional freedom of expression by the third group—the “everyone else” group.  This does not mean there are no restrictions.  It just means that their rights under the constitution are unfettered.  So the government (i.e., public school officials) cannot silence or stifle them.

But there are other restrictions on freedom of expression.  Making a false statement of fact about a person is a slander, if verbal, and a libel if written.  Sometimes people use their “freedom of expression” in a way that amounts to illegal harassment.  Some schools invoke peer pressure on parents by asking them to sign off on a “parent code of conduct.”

School officials should tread carefully here.  The starting point is to consider which category the speaker falls into. After that, if you think some sort or corrective action, or a warning perhaps, is called for, the Dawg suggests you seek legal counsel. It can get tricky.

DAWG BONE: YOU HAVE SOME CONTROL OVER STUDENT EXPRESSION AND EMPLOYEE EXPRESSION. NOT MUCH WITH EVERYONE ELSE.

 Enjoy the weekend, Loyal Readers! More Dawg Bones next week!

Commissioner Morath was pretty blunt: “Respondent [the school district] needs to change its grievance policy.”  The policy permitted the board president to have a grievance heard only by a board committee, rather than the board as a whole. The Commissioner said that such a policy violates the Texas Education Code.

Apparently, the district has already made that change. I looked up its policy online and found nothing that would authorize the board president to assign an employee grievance to a committee.  The district has a 10-page version of DGBA (Local) and it calls for the entire board to hear a grievance.

So check your district’s policy.  Make sure you are not sending grievances to committee.

The case is Volpe and Kane v. United ISD, decided by the Commissioner on August 1, 2018.  The consolidated cases are Docket Nos. 012-R10-11-2017 and 023-R10-01-2018.

DAWG BONE: THE FULL BOARD HAS TO HEAR THE GRIEVANCE.

 Tomorrow: Social media posts got you down?

You are the principal of a middle school.  You get a phone call from “Mr. Jones” who says he is the principal at a school in a neighboring district.  He’s calling to inquire about one of your former employees.  Would you rehire this person?  You give your honest response: Nope.  “She’s a troublemaker.”  Mr. Jones thanks you for your candor.

Later you learn that “Mr. Jones” is not a principal and is not even Mr. Jones. He is a friend of the woman you just labeled a “troublemaker.”  Yikes.

This is the background for the court’s decision in Aldine ISD v. Massey.  Ms. Massey claimed that the district retaliated against her for making an ADA claim and taking it to the EEOC.  But the court concluded that she produced no evidence that the principal’s negative evaluation actually caused her to lose a job opportunity:

In this case, Massey has not adduced evidence that the school district gave a negative reference to a prospective employer.  Massey points to the school principal’s response to the phone call made by Massey’s friend, in which the friend pretended to be seeking a reference for Massey. Massey argued that a factfinder could reasonably infer that the principal would have made a similar response to an actual inquiry for an employment reference. Massey, however, adduced no evidence to allow for that inference.

I guess there are two lessons here.  First, when you are the plaintiff, you cannot take anything for granted. You have to come forth with the evidence to carry the burden of proof.  Second, make sure you know who you are speaking to before offering personnel evaluations.  It might be good practice to call back to the school’s official phone line, rather than somebody’s cell.  It might also be good to refer all personnel inquiries to the HR department.

This case was decided by the Court of Appeals in Houston on June 26, 2018. We found it at 2018 WL 3117831.

DAWG BONE: SOMEBODY MIGHT BE TRYING TO SET YOU UP.  BE ON GUARD!

Tomorrow: Can we have a committee of the board hear the grievance?